Ritchie Hodges v. State of Indiana ( 2014 )


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  •  Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before any
    court except for the purpose of
    Dec 01 2014, 10:22 am
    establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:
    MARK SMALL                                           GREGORY F. ZOELLER
    Indianapolis, Indiana                                Attorney General of Indiana
    ELLEN H. MEILANDER
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    RITCHIE HODGES,                                      )
    )
    Appellant-Defendant,                          )
    )
    vs.                                   )        No. 06A04-1406-PC-251
    )
    STATE OF INDIANA,                                    )
    )
    Appellee-Plaintiff.                           )
    APPEAL FROM THE BOONE SUPERIOR COURT
    The Honorable Rebecca S. McClure, Judge
    Cause Nos. 06D02-1103-FD-206 and 06D02-1304-PC-203
    December 1, 2014
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    VAIDIK, Chief Judge
    Case Summary
    In 2012 Richie Hodges pled guilty to possession of child pornography and
    voyeurism and was ordered to serve four years on community-corrections home detention
    and a year-and-a-half suspended to probation. Throughout his sentence, Hodges was
    prohibited from possessing pornography or obscene matter, and he was repeatedly advised
    of this. Approximately one month after sentencing, Hodges’ attorney—upon his client’s
    request—went to the Lebanon Police Department and picked up the large collection of
    DVDs that had been confiscated by the police as part of the initial criminal investigation,
    and then delivered these to Hodges without reviewing them. Later, during a home visit,
    Hodges’ probation officer saw a suspicious-looking DVD next to Hodges’ television and
    confiscated the DVD collection, ultimately discovering that four of the DVDs contained
    pornography.    The violation was reported, and at the hearing on the revocation of
    community-corrections placement, Hodges’ attorney argued that Hodges did not knowingly
    possess the pornography. The trial court found that Hodges had violated the terms of his
    community-corrections placement and ordered him to serve the remainder of his executed
    sentence at the Department of Correction. At the probation-violation hearing, where
    Hodges was represented by a different attorney, the trial court found that Hodges had
    violated the terms of probation by possessing obscene matter.
    After initiating a direct appeal of both the community-corrections revocation and
    the probation revocation, Hodges filed a post-conviction petition, requesting that this Court
    dismiss his appeal without prejudice in order to allow him to pursue post-conviction relief.
    See Hodges v. State, 
    997 N.E.2d 419
    (Ind. Ct. App. 2013). Hodges alleged in his post-
    2
    conviction petition that he had received ineffective assistance of counsel by his first
    attorney. The trial court denied his petition, and Hodges now appeals the revocation of
    both his community-corrections placement and probation and the denial of post-conviction
    relief. Specifically, Hodges argues that the evidence is insufficient to establish that he was
    in possession of pornography, and that the trial court abused its discretion when it denied
    him post-conviction relief. Because we find the evidence is sufficient to support the
    revocation of Hodges’ probation—the direct appeal issue—and because we find no merit
    to Hodges’ claim of ineffective assistance of counsel–the post-conviction issue—we
    affirm.
    Facts and Procedural History
    In 2011 Hodges was charged with three counts of Class D felony possession of child
    pornography and one count of Class D felony voyeurism. The Lebanon Police Department
    seized over 2000 DVD/CDs, two computer hard drives, a mobile phone, and several other
    items from Hodges’ bedroom. Hodges hired attorney and former judge James Detamore
    (Attorney Detamore) to represent him in the criminal proceedings. In May 2012 Hodges
    pled guilty as charged to all four counts, and the trial court ultimately imposed an aggregate
    sentence of five-and-a-half years, with the first four years to be served on community
    corrections home detention and the final year-and-a-half to be suspended to probation.
    Hodges’ community-corrections placement required him to comply with all terms
    and conditions of home detention with electronic monitoring and to sign and initial all
    terms of the “Electronic Monitoring Program Contract.” Comm. Corr. Tr. p. 3. Annette
    3
    Bowden, Director of Operations for Boone County Community Corrections, performed
    Hodges’ “pre-screen,” an hour-and-a-half-long process described by Bowden as follows:
    He goes through the [Community Corrections] contract. I give him the
    opportunity to ask any questions. The handbook and other packets are sent
    to their home prior to that. They are to bring ‘em in filled out. We answer
    questions. I go through and do an interview that talks about a little bit of
    everything. I go over the rules of the [Community Corrections] contract.
    
    Id. at 39-40.
    Number 12 of the community-corrections contract reads: “I understand that I
    am not to possess any pornography in any form.” 
    Id. at 45-46.
    Bowden discussed this
    term with Hodges, and he did not ask her any questions about it. See 
    id. at 40.
    Greg Higbee, Field Officer for Boone County Community Corrections, performed
    Hodges’ initial “hook-up” and at that time reviewed “the basic rules that go along with
    being on home detention.” 
    Id. at 53.
    Officer Higbee’s recollection of this experience was
    as follows:
    Q: So you went over specifically with Mr. Hodges that he was not to have
    any pornographic material as a term of his Community Corrections?
    [Officer Higbee]: Correct.
    Q: Did Mr. Hodges have any questions for you on that?
    [Officer Higbee]: The only question that I recall at the time was, and I
    believe it was his wife that was in the room that she asked the question and I
    believe it was about an R rated movie. They . . . wanted to know what our
    standing was as far as an R rated movie was concerned. And I . . . basically
    explained as long as it was not pornographic, rated X, an R rated movie I
    believe would be fine.
    Q: And did he . . . have an agreement with you on that, I mean did you . . .
    have him to understand what you had meant when you said that?
    [Officer Higbee]: I believe, they just both shook their heads –
    Q: Okay.
    [Officer Higbee]: -- up and down.
    Q: So there was no further follow up or any questions about any . . . specific
    items?
    [Officer Higbee]: No sir.
    Q: . . . [D]id Mr. Hodges ever bring any items to you, to your attention asking
    if this would quality as pornographic material or anything of that nature?
    4
    [Officer Higbee]: No sir. Not that I recall.
    
    Id. at 53-54.
    Michael Nance, Hodges’ supervising probation officer, also went over the terms of
    probation with Hodges, had him initial all of the terms, and asked him if he had any
    questions about any of the terms. Prob. Tr. p. 6. Term 32 provides: “You shall abide by
    all conditions of probation as set forth on the Indiana Recommended Special Probation
    Conditions for Adult Sex Offenders filed simultaneously with these terms of probation.”
    Appellant’s D. A. App. p. 155. Nance testified that term number nine of the probation
    conditions for adult sex offenders (Term 9) provides in relevant part as follows: “You shall
    not possess obscene matter as defined by Indiana Code 35-49-2-1 or child pornography as
    defined by 18 United States Code 2256(8), including but not limited to videos, magazines,
    books, DVDs and material downloaded from the Internet. . . .” Prob. Tr. p. 7-8.
    After sentencing, Attorney Detamore reviewed the terms and conditions of home
    detention and probation with Hodges—including the provision stating that he was not to
    possess pornography—and Hodges did not ask his attorney any questions about that
    provision. P-C Tr. p. 26-27.
    Approximately one month after sentencing and while he was serving the home-
    detention portion of his sentence, Hodges asked for the return of the property that had been
    confiscated during the criminal investigation. See 
    id. at 25.
    In August 2012 Attorney
    Detamore, who had represented Hodges from the time he was charged through sentencing
    and thereafter, collected the property from the Lebanon Police Department and delivered
    it to the house where Hodges was residing, where it was placed temporarily in the garage.
    5
    Attorney Detamore did not review any of the discs before handing them over to Hodges.
    Thereafter, Hodges moved the DVD collection to his bedroom. Hodges took a hard drive
    and mobile phone in to Probation Officer Nance to have them reviewed for impermissible
    material. See 
    id. at 31.
    Hodges intended to take the disc collection to Probation Officer
    Nance and have it checked for any impermissible material—as he had done with his hard
    drive and mobile phone—but claimed variously that he “didn’t want to rush all that stuff
    [he] got back to [] them, ‘cause it’s overwhelming, so [he] was doin’ a little at a time,” and
    that he didn’t have “the time to haul all that stuff in a little car up there.” Comm. Corr. Tr.
    p. 104, P-C Tr. p. 45. Hodges also claimed, however, that he had gone through the
    collection himself and had thrown away forty DVDs that contained pornography. Comm.
    Corr. Tr. p. 93-94, 104.
    Because Hodges’ hard drive contained some impermissible material, Probation
    Officer Nance went to Hodges’ residence on September 12, 2012, “to make sure he did not
    have any further materials which he had not submitted . . . which would be contrary to the
    terms of his release.” 
    Id. at 12.
    Probation Officer Nance observed a disc next to the
    television with a paper label that read “Whacker.” 
    Id. at 13.
    Hodges’ brother, with whom
    Hodges was living, later testified that he had placed this disc next to Hodges’ television
    after coming across it in his garage. Comm. Corr. Tr. p. 61.
    Probation Officer Nance and Officer Higbee confiscated the entire disc collection.
    After reviewing the collection, Probation Officer Nance determined that four of the
    confiscated discs—“Whacker,” “SC 5-6,” “MS 100,” and “P DOCS”—contained
    6
    pornographic material, and he reported the community-corrections/probation violations.
    
    Id. at 13-19.
    Two of these discs are described by the trial court as follows:
    The P DOCS DVD . . . contain[s] a very graphic sex scene in which a man
    and woman are engaged in sexual intercourse after purportedly enhancing
    their senses by smoking marijuana. The story line in ‘Whacker[]’ involves a
    voyeur watching the actions of a man and three women as they engage in
    various acts of sexual stimulation, which activity is clearly intended to appeal
    to the viewer’s prurient sexual interest. The voyeur then kidnaps two of the
    women individually and tortures each of them.
    Appellant’s App. p. 98.
    Five days later, Probation Officer Nance returned with Lebanon police to arrest
    Hodges. Hodges said “he was upset because he had gone through his . . . DVD collection
    after it had been returned from the police and thrown away . . . approximately fifty (50)
    DVDs, and he couldn’t believe he was being violated . . . after only keeping four [] to five
    [].” Comm. Corr. Tr. p. 19-20. Hodges denies saying this; instead, he claims he said “that
    [he] had thrown away forty [] DVDs that contained pornography and if . . . I was gonna
    keep anything it wouldn’t have been that one.” 
    Id. at 104.
    Hodges also testified that
    although he had downloaded and burned the content onto these DVDs, he has actually
    never watched them; however, he knows that they do not contain “hard core pornography”
    because they “had writing on [them] in some form or another, either on the CD, or the
    DVD or a little piece of paper in the cover,” and according to his system, any DVD-R with
    nothing written on it with a Sharpie marker was immediately identifiable as pornography.
    
    Id. at 91-93,
    113.
    Attorney Detamore, who had never withdrawn his appearance in Hodges’ case,
    represented him at the community-corrections hearing. Attorney Detamore viewed the
    7
    four DVDs that resulted in Hodges’ violation, and had “no doubt in [his] mind that . . . the
    Judge would find the materials to be pornographic.” P-C Tr. p. 78. Hodges later testified
    that before the community-corrections hearing, and “[a]fter five hours of arguing,” he still
    didn’t agree with Attorney Detamore’s interpretation of what constituted pornography. 
    Id. at 37.
    In fact, Hodges maintains that he has his own definition of pornography, which is
    “[a]nything that has penetration . . . the penis going into the vagina in full view.” 
    Id. at 27-
    28. He described “Whacker” as a “B drive-in movie. About zombies.” 
    Id. at 57.
    Attorney
    Detamore did not recall having any dispute with Hodges about what constituted
    pornography. 
    Id. at 69.
    In any event, Attorney Detamore’s strategy at the community-corrections hearing
    was to argue that Hodges “did not knowingly possess pornographic material.” 
    Id. at 78.
    Regarding his consent to this strategy, Hodges testified as follows:
    Q: Sir you stated that you got into a five (5) hour argument with your
    attorney prior to the hearing?
    [Hodges]: Well it was a discussion.
    Q: Why did you continue letting him represent you at that point if you did
    not agree with his opinion?
    [Hodges]: I don’t know. I, you know. I’m not an attorney so, you know, I
    just . . .
    Q: So despite the fact that you knew what he considered pornography, and
    that you had a different opinion of that, you allowed him to represent you in
    the hearing when your liberty’s at stake, is that correct?
    [Hodges]: Yeah.
    Q: Fair to say then you acquiesced to his belief or his strategy on how to
    proceed, by allowing him to represent you knowing full well what he was
    going to argue to the Judge? You acquiesced to that.
    [Hodges]: Well I . . . I wasn’t in total agreement with him, no.
    Q: But you knew what he was going to argue and yet you still appeared and
    you didn’t ask the Judge for a different attorney and you didn’t fire him either
    did you?
    [Hodges]: No.
    8
    *****
    Q: And yet he was a private hire. You could have hired another attorney,
    correct?
    [Hodges]: Well, I could’ve.
    Q: Why didn’t you?
    [Hodges]: I . . . I don’t know how to answer that question.
    
    Id. at 46-47.
    Following the community-corrections hearing, the trial court found that “P
    DOCS” and “Whacker” contained “depictions well beyond R-rated material,” and also
    found that Hodges’ testimony that he did not know what was contained on any of the four
    DVDs not credible. See Appellant’s App. p. 9. The trial court concluded that the State had
    proven by a preponderance of the evidence that Hodges violated a term of his community-
    corrections placement by knowingly possessing pornography. See 
    id. A probation-revocation
    hearing was held approximately four months later. Attorney
    Detamore did not represent Hodges at this hearing; rather, he had hired new counsel. At
    this hearing, the parties agreed to incorporate into evidence the testimony heard and
    evidence admitted at the community-corrections hearing. 
    Id. at 11.
    Hodges’ argument at
    the probation-revocation hearing—where he was represented by a different attorney than
    at the community-corrections hearing—was “that the term of probation he was alleged to
    have violated is impermissibly vague and that his due process rights were therefore violated
    in that Hodges could not have known the behavior precluded by the term of probation at
    issue.” 
    Id. at 12.
    The trial court nonetheless concluded that the State had proven by a
    preponderance of the evidence that Hodges violated term nine of the Indiana
    Recommended Special Probation Conditions for Adult Sex Offenders by possessing
    9
    obscene matter as defined by Indiana Code section 35-49-2-1, and that term nine is not
    impermissibly vague. See 
    id. at 20.
    Thereafter, Hodges initiated an appeal of his probation revocation and then received
    permission from this Court to dismiss that appeal without prejudice in order to file a
    petition for post-conviction relief. In his post-conviction petition, Hodges alleged that he
    received ineffective assistance of counsel1 at the community-corrections hearing because
    “Hodges was not consulted sufficiently by counsel” before the hearing, and because
    “Counsel made a statement on the record inconsistent with Hodges’ specific instructions
    as to the ultimate fact—whether items alleged to be pornography were pornography.” 
    Id. at 28.
    The post-conviction court granted the State’s motion to dismiss the petition,
    concluding that since Hodges was challenging neither his conviction nor his sentence—
    only his change in placement—then his claim did not fall under the purview of the post-
    conviction rules. Hodges appealed, and this Court reversed and remanded, holding that
    Hodges’ allegation was a claim that his conditional release was unlawfully revoked, which
    did fall within the purview of Post-Conviction Rule 1(a)(5). See 
    Hodges, 997 N.E.2d at 419
    .
    Thereafter, Hodges sought to add a third allegation to his post-conviction petition:
    “Trial counsel had a duty to examine any materials returned to Hodges or a duty to warn
    Hodges that any such materials could constitute a violation of the terms and conditions
    either of Community Corrections or probation.” Appellant’s App. p. 76. The State
    1
    Actually, Hodges’ counsel wrote in the original petition on March 28, 2013, that Hodges was
    provided “adequate and effective assistance of counsel” in violation of his constitutional rights. Appellant’s
    App. p. 112. The State filed its response to Hodges’ petition, “admitting that Hodges received ‘adequate
    and effective’ assistance of counsel” but denying any violation of Hodges’ constitutional rights. 
    Id. at 28.
                                                         10
    objected to the new allegation on the grounds that it did not fall within the Post-Conviction
    Rules, but appeared, instead, to be a civil matter. The post-conviction court sustained the
    objection, but allowed Hodges to make an offer of proof. Ultimately, however, the court
    concluded, as a matter of law, that the remedy afforded by Post-Conviction Rule 1 is “not
    available for actions of counsel after the services of counsel relating to a pending allegation
    and/or hearing thereon have concluded but prior to counsel’s filing his withdrawal of
    appearance with the Court.” 
    Id. at 48g.
    Moreover, the court wrote, even if the third
    allegation did fall within the Post-Conviction Rules, it failed on the merits, because
    Attorney Detamore “had no duty to examine the items returned and was under no duty to
    warn Hodges of that which [he] already knew.” 
    Id. at 48h.
    Hodges now appeals from the revocation of his community-corrections
    placement/probation and the denial of post-conviction relief.
    Discussion and Decision
    I. Sufficiency of Evidence
    When reviewing the sufficiency of the evidence to support a probation revocation,
    we consider only the evidence most favorable to the judgment without reweighing the
    evidence or judging witnesses’ credibility. Figures v. State, 
    920 N.E.2d 267
    , 272 (Ind. Ct.
    App. 2010). A probation-revocation hearing is civil in nature, and the State’s burden is to
    prove the alleged violations by a preponderance of the evidence. Id.; see also Ind. Code §
    35-38-2-3 (“[T]he State must prove the [probation] violation by a preponderance of the
    evidence.”). “If there is substantial evidence of probative value to support the trial court’s
    conclusion that a defendant has violated any terms of probation, we will affirm its decision
    11
    to revoke probation.” 
    Figures, 920 N.E.2d at 272
    (quoting Cox v. State, 
    706 N.E.2d 547
    ,
    551 (Ind. 1999)).
    Hodges argues that because he was not given adequate notice as to what constituted
    “pornography,” his possession of pornography was neither knowing nor intentional, and,
    therefore, the evidence is insufficient to support the revocation of his community-
    corrections placement and probation. But he did not raise any vagueness challenge at the
    community-corrections hearing; instead, Attorney Detamore argued that Hodges did not
    knowingly possess pornography. This was a strategic decision based on the fact that after
    viewing the DVDs, Attorney Detamore “felt that any person, especially the Judge . . . would
    find them to be pornography.” P-C Tr. p. 72. A defendant waives a claim—including a
    constitutional claim—when he raises it for the first time on appeal after failing to raise it
    in the trial court. See, e.g., Stewart v. State, 
    945 N.E.2d 1277
    , 1288 (Ind. Ct. App. 2011),
    trans. denied. Because Hodges is raising this vagueness claim for the first time on appeal,
    we find that he has waived the claim.2
    At Hodges’ probation-revocation hearing, his counsel did argue vagueness but did
    not make a clear distinction between pornography—the term used in the community-
    corrections contract—and obscene matter. Term 32 of Hodges’ probation contract reads:
    “You shall abide by all conditions of probation as set forth on the Indiana Recommended
    Special Probation Conditions for Adult Sex Offenders filed simultaneously with these
    2
    We acknowledge that Hodges is also arguing ineffective assistance of counsel in this appeal, but
    not for this issue (i.e., the failure to argue vagueness at the community-corrections hearing). Instead,
    Hodges argues that Attorney Detamore was ineffective for failing to review the DVDs or discuss with
    Hodges whether the possession of those discs would be a violation of the terms of community corrections
    or probation. In any event, as the trial court found, the material meets the definition of obscene matter as
    defined by the Indiana Code and thus constitutes pornography by any definition.
    12
    terms of probation.” Appellant’s D. A. App. p. 155. Term 9 of the probation conditions
    for adult sex offenders provides in relevant part as follows: “You shall not possess obscene
    matter as defined by Indiana Code 35-49-2-1 or child pornography as defined by 18 United
    States Code 2256(8), including but not limited to videos, magazines, books, DVDs and
    material downloaded from the Internet. . . .” Prob. Tr. p. 7-8.
    Indiana Code section 35-49-2-1 states:
    A matter or performance is obscene for the purposes of this article if:
    (1) the average person, applying contemporary community standards, finds
    that the dominant theme of the matter or performance, taken as a whole,
    appeals to the prurient interest in sex;
    (2) the matter or performance depicts or describes, in a patently offensive
    way, sexual conduct; and
    (3) the matter or performance, taken as a whole, lacks serious literary, artistic,
    political, or scientific value.
    Ind. Code § 35-49-2-1.
    The State contends that Hodges is barred from raising a vagueness challenge to
    Term 9, because he cannot wait until after he has violated a term of his probation to
    collaterally challenge that term. See Schlichter v. State, 
    779 N.E.2d 1155
    , 1157 (Ind. 2002)
    (holding that defendant cannot collaterally challenge the propriety of consecutive sentences
    on appeal from his probation revocation); Montgomery v. State, 
    878 N.E.2d 262
    , 267 (Ind.
    Ct. App. 2007) (where defendant never attempted to appeal validity of probation condition
    when it was imposed, his challenge to its validity several years later, after he was alleged
    to have violated it, was an impermissible collateral attack on a final judgment). We agree
    that the time to raise this vagueness challenge would have been on direct appeal of his
    sentence.   See 
    Schlichter, 779 N.E.2d at 1156
    (“We hold that Schlichter may not
    13
    collaterally challenge his sentence on an appeal from his probation revocation. Schlichter’s
    options were to appeal his sentence when imposed or challenge it in a post-conviction
    proceeding.”). Moreover, Hodges in his appellate brief advances no cogent arguments in
    support of the contention that the probation term prohibiting possession of obscene matter
    is too vague. See Ind. App. Rule 46(A)(8)(a) (“The argument must contain the contentions
    of the appellant on the issues presented, supported by cogent reasoning.”). Indeed, in
    support of his argument that the prohibition on possessing pornography is too vague,
    Hodges cites a case in which another panel of this Court found a probation condition
    prohibiting “pornographic or sexually explicit materials” too vague, and remanded to the
    trial court, “strongly encourag[ing]” the trial court on remand to employ the definition of
    “obscene matter” found in Indiana Code section 35-49-2-1. See McVey v. State, 
    863 N.E.2d 434
    , 448 (Ind. Ct. App. 2007), reh’g denied, trans. denied. We decline, therefore,
    to address any vagueness challenge to Term 9, and proceed to the sufficiency issue.
    Here, the trial court found that the State had proven by a preponderance of the
    evidence that Hodges violated Term 9. In support of this conclusion, the trial court—
    having reviewed the DVDs identified by Probation Officer Nance as containing
    “obscene/pornographic materials”—discussed a particularly graphic sex scene in “P
    DOCS” and the subject matter of “Whacker” as a whole, finding that these two DVDs
    contained “material well beyond that classified as R-rated.” Appellant’s App. p. 15. The
    trial court wrote: “In light of the other testimony heard and evidence admitted, the Court
    does not find at all credible the Defendant’s testimony that he did not know what was
    contained on any of the four [] discs admitted into evidence at his Change of Placement
    14
    Hearing.” 
    Id. at 18.
    The trial court also found significant that Hodges brought the DVD
    collection in from the garage to his bedroom; he never took his CD/DVD collection to
    community corrections or probation to have it reviewed (although he had taken in his hard
    drive and mobile phone)3; and Hodges’ reaction to Probation Officer Nance’s confiscation
    of his DVD collection was that he couldn’t believe Probation Officer Nance was going to
    violate him for keeping “four or five” DVDs. 
    Id. at 18.
    On appeal, we will not reweigh
    the evidence or judge the witnesses’ credibility. See 
    Figures, 920 N.E.2d at 272
    . We find
    that there was ample evidence to support the trial court’s conclusion that Hodges violated
    Term 9.
    As a final matter, we address Hodges’ underdeveloped assertion that the trial court
    “never observed the entirety of any of the films in question.” Appellant’s Br. p. 28. Hodges
    does not argue that this rises to the level of reversible error; indeed, he does little beyond
    summarizing the obscenity test articulated in Roth v. United States, 
    354 U.S. 476
    , 489
    (1957)—“whether to the average person, applying contemporary community standards, the
    dominant theme of the material taken as a whole appeals to prurient interest”—and quoting
    from a law-review article which argues that “allowing jurors to consider only a single scene
    3
    From the trial court’s probation-revocation order:
    28. The Court did not find genuine the Defendant’s excuse for not taking
    his DVDs and CD’s to Community Corrections for review. Hodges
    testified at his Change of Placement hearing that he knew that Community
    Corrections and Probation were busy and that he chose not to take his
    collection to them for review because of the overwhelming task that a
    review would have imposed upon those departments. The Court heard no
    testimony that either Probation or Community Corrections ever suggested
    to the defendant that they would not be able to review his CD/DVD
    collection as he had earlier suggested.
    Appellant’s App. p. 16-17.
    15
    from a movie represents a return to the isolated-excerpt standard squarely rejected by the
    [United States Supreme] Court more than half a century ago in Roth.”4 Hodges also quotes
    from the trial-court orders from the community-corrections hearing and the probation-
    revocation hearing, in both of which the trial court states that the court “reviewed portions”
    of the four discs singled out by Probation Officer Nance. 
    Id. at 29.
    However, Hodges did
    not raise this issue at any point during either the community-corrections hearing or the
    probation-revocation hearing.5 Indeed, at the community-corrections hearing, the
    following exchange occurred:
    Prosecutor: . . . There were[,] I believe, . . . four (4) discs confiscated that
    were outlined in the . . . violation that [Probation Officer] Nance would be
    testifying to. I don’t know if it’s the Court’s preference for us to play those
    videos in . . . the courtroom or . . . to submit those to the Court as . . . an
    exhibit and allow the Court to review those on their own. I’m not sure how
    procedurally the Court wants to proceed.
    The Court: Well again I think that becomes a Defense question, because the
    Defense would have an opportunity if they wished to ask some questions I
    suppose about the discs. Do you want them played in open court?
    [Attorney] Detamore: Your Honor, I think I would . . . not object if the Court
    wants to. I think I would prefer the Court, as long as the State stipulates that
    what is being shown to the Judge is what was shown to me by Michael Nance.
    Because what he showed to me was, and he has them marked as far as how
    many minutes in or how many markers or how many something, you know,
    into the various thing.
    The Court: Can we make a record to that effect, that what I –
    4
    Clay Calvert et. al., Judicial Erosion of Protection for Defendants in Obscenity Prosecutions?:
    When Courts Say, Literally, Enough Is Enough and When Internet Availability Does Not Mean Acceptance,
    1 HARV. J. SPORTS & ENT. L. 7, 13 (2010).
    5
    Since the parties jointly agreed at the probation-revocation hearing to incorporate “the exhibits
    and all testimony from [the community-corrections] hearing” into the hearing, there was never a discussion
    about viewing the DVDs. However, Hodges certainly could have raised this issue at the probation-
    revocation hearing.
    16
    Prosecutor: Yes Your Honor.
    The Court: -- what you are asking me to review is what [Attorney] Detamore
    has seen?
    Prosecutor: That is correct Your Honor and I’ll . . . even ask [Probation
    Officer] Nance that question when he takes the stand.
    The Court: To identify those portions?
    Prosecutor: To identify those things –
    The Court: Alright.
    Prosecutor: – and then ask him if he has in fact shown those to Defense
    Counsel.
    The Court: So then your request would be that the Court review those in
    chambers at the conclusion of the hearing?
    [Attorney] Detamore: Yes Your Honor.
    The Court: Alright. The Court will do so.
    Comm. Corr. Tr. p. 8-9. We find that Hodges has waived this issue both by failing to raise
    it at both hearings before the trial court and by failing to present any cogent argument on
    appeal that viewing the materials in their entirety would lead to a conclusion other than
    that drawn by Probation Officer Nance and ultimately the trial court—that the DVDs were
    obscene matter in violation of Term 9.6
    6
    As articulated by the State:
    Tellingly, neither at any point during the various proceedings in the trial court nor in his
    brief on appeal has [Hodges] ever pointed a court to any other parts of the DVDs in question
    that would lead to a different conclusion or even made any argument that there is anything
    present anywhere in any of the films that would or should remove them from the definition
    of obscene matter. Petitioner has never argued to the court that watching the films in their
    entirety would create a different impression of their purpose or value or that the portions
    highlighted by [Probation] Officer Nance are somehow unrepresentative of the work as a
    whole. [Hodges] has not done this because there is no argument to be made along those
    lines.
    17
    II. Ineffective Assistance of Counsel
    Last, Hodges argues that the trial court erred when it denied his request for post-
    conviction relief by finding that Attorney Detamore owed no duty to Hodges and that there
    was no breach even if such duty existed. In particular, Hodges asserts that Attorney
    Detamore was ineffective for violating Hodges’ Sixth Amendment right to counsel by
    returning Hodges’ DVD collection to him without first reviewing the contents or consulting
    with Hodges as to whether he could possess them without being in violation of community
    corrections or probation.7
    A petitioner who has been denied post-conviction relief faces a rigorous standard of
    review. Dewitt v. State, 
    755 N.E.2d 167
    , 169 (Ind. 2001). As such, the petitioner must
    convince the court on review that the evidence as a whole leads unerringly and
    unmistakably to a decision opposite that reached by the post-conviction court. 
    Id. at 170.
    Stated differently, “[t]his Court will disturb a post-conviction court’s decision as being
    contrary to law only where the evidence is without conflict and leads to but one conclusion,
    Appellee’s Br. p. 25.
    7
    In his initial petition for post-conviction relief, Hodges also asserted that he was not consulted
    sufficiently by counsel before the community-corrections hearing, and that Attorney Detamore “made a
    statement on the record inconsistent with Hodges’ specific instructions as to the ultimate fact—whether
    items alleged to be ‘pornography’ were ‘pornography.’” Appellant’s App. p. 112. Thereafter, in his
    amended petition for post-conviction relief, Hodges added this third contention—that Attorney Detamore
    had a duty to examine any materials returned to Hodges or a duty to warn him that possession of such
    materials could constitute a violation of his community-corrections contract or probation. See 
    id. at 76.
    On
    appeal from the denial of post-conviction relief, only this third contention is raised.
    We note that Hodges also asserts a “law of the case” argument. Specifically, Hodges argues in his
    brief that “the trial court’s decision [to dismiss his post-conviction petition] violates the law of the case”
    because of the trial court’s previous dismissal of his initial post-conviction petition, a result reversed by
    another panel of this Court in 
    Hodges, 997 N.E.2d at 419
    . Appellant’s Br. p. 32. But Hodges’ third
    contention, as discussed above, was not included in his initial post-conviction petition and therefore was
    not previously ruled on by either the post-conviction or appellate court. It is unclear to us why Hodges
    would argue that one of his own issues is precluded from appellate review.
    18
    and the post-conviction court has reached the opposite conclusion.” 
    Id. (quoting Miller
    v.
    State, 
    702 N.E.2d 1053
    , 1058 (Ind. 1998)).        The reviewing court accepts the post-
    conviction court’s findings of fact unless clearly erroneous. 
    Id. Moreover, this
    Court
    considers only the probative evidence and all reasonable inferences therefrom that support
    the post-conviction court’s determination and will not reweigh the evidence. Bigler v.
    State, 
    732 N.E.2d 191
    , 194 (Ind. Ct. App. 2000), trans. denied.
    The post-conviction court “dismisse[d] outright as failing to state a claim upon
    which post-conviction relief can be granted” Hodges’ ineffective-assistance-of-counsel
    claim. Appellant’s App. p. 48g. The court went on to conclude that even assuming
    arguendo there is a basis for relief under Indiana Post-Conviction Rule 1, Hodges failed to
    show that the actions of Attorney Detamore constituted deficient performance giving rise
    to a viable ineffective-assistance-of-counsel claim. In support of this conclusion, the post-
    conviction court found:
    83. The Court heard no evidence supporting a finding of such a duty in
    contract or otherwise. Similarly, the Court found no legal authority, in
    common law or statutory law, establishing a duty to warn a client for whom
    services have been completed that the client’s actions in the future may
    subject him to further sanction by the State.
    84. Following sentencing hearing, [Attorney] Detamore reviewed with
    [Hodges] the terms of his Community-corrections placement and the terms
    of probation. This occurred prior to [Attorney] Detamore returning
    confiscated items to [Hodges’] residence.
    85. [Attorney] Detamore placed items he received from the Lebanon Police
    Department in the garage of the home in which [] Hodges was residing. It
    was Hodges who chose soon thereafter to move those items into his bedroom.
    86. Although Hodges asked the assistance of [Probation Officer] Nance in
    reviewing certain items that had been returned to him, never once did he ask
    [Attorney] Detamore to review any of the items returned to him.
    19
    87. The Court concludes, as a matter of law, that [Attorney] Detamore had
    no duty to examine the items returned and was under no duty to warn Hodges
    of that which Hodges already knew.
    Appellant’s App. p. 48g-h.
    The State argues that Hodges waived this claim by failing to make any cogent
    argument “as to how the post-conviction rules provide a remedy for something that
    occurred after one legal proceeding was concluded and before any other legal proceedings
    were initiated.” Appellee’s Br. p. 31; see Ind. App. Rule 46(A)(8)(a). The State argues
    further that there is no Sixth Amendment right to counsel in this context and, even if there
    were, Hodges has failed to show that Attorney Detamore’s performance fell below an
    objective standard of reasonableness, and that Hodges was prejudiced as a result. We agree
    that he had no duty to review these DVDs. Even if Attorney Detamore had such a duty
    and sua sponte decided to review the hundreds of DVDs in Hodges’ collection—a task
    Hodges never asked him to perform—and had encountered what he believed to be
    pornography, in light of the fact that Hodges vehemently disagreed with Attorney
    Detamore as to what constituted “pornography,” there is no reason to believe that Hodges
    would have relied on that information anyway. In conclusion, we certainly cannot say that
    the evidence as a whole leads unerringly and unmistakably to a decision opposite that
    reached by the post-conviction court. See Dewitt, 
    755 N.E.2d 167
    . Accordingly, we affirm
    the trial court.
    Affirmed.
    FRIEDLANDER, J., and MAY, J., concur.
    20