MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                          Dec 18 2018, 10:35 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Mario Brown                                              Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mario Brown,                                             December 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PC-606
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         Trial Court Cause Nos.
                                                         71D02-1311-FA-23
                                                         71D02-1702-PC-10




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-606 | December 18, 2018            Page 1 of 8
                                       Statement of the Case
[1]   Mario Brown appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Brown raises three issues for our review, which we restate as

      follows:


              1.      Whether Brown preserved for appellate review his
                      assertion that he did not enter into his guilty plea
                      knowingly, intelligently, and voluntarily.


              2.      Whether the post-conviction court erred when it
                      concluded that Brown did not receive ineffective assistance
                      from his trial counsel.


              3.      Whether Brown waived his freestanding claim of an
                      erroneous sentence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On November 15, 2013, the State charged Brown with two counts of Class A

      felony child molesting and one count of Class C felony child molesting.

      Thereafter, Brown entered into a plea agreement with the State in which Brown

      agreed to plead guilty to one count of Class A felony child molesting and, in

      exchange, the State dismissed the other two counts. The plea agreement also

      provided for a maximum executed sentence of thirty-five years and a waiver of

      Brown’s right to appeal his sentence. Appellant’s App. Vol 2 at 64-65. The

      trial court accepted Brown’s plea agreement, entered its judgment of conviction,

      and sentenced him to the advisory term of thirty years.
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-606 | December 18, 2018   Page 2 of 8
[4]   In February of 2017, Brown filed his petition for post-conviction relief. At an

      ensuing evidentiary hearing on Brown’s petition, Brown clarified for the court

      that his petition raised two issues: whether his trial counsel had rendered

      ineffective assistance of counsel in advising Brown to plead guilty and in not

      “challeng[ing]” “[a]nything,” and whether he had received an “erroneous”

      sentence. Id. at 159. The post-conviction court then heard evidence, including

      the testimony of Brown’s trial counsel. In particular, Brown’s trial counsel

      testified as follows:


              Q [by Brown]. Did you . . . fully explain to me about what was
              in my plea agreement?


              A.      Yes. We fully went over your plea agreement.


                                                     ***


              Q.      With regard to the plea agreement . . . , did you fully
              inform me with regard to . . . the statute definition as a credit
              restricted felon under . . . Indiana Code [Section] 35-31.5-2-7.2
              because there is no mention in my plea agreement?


              A.    Yes. We discussed what a credit restricted felon would
              mean.


                                                     ***


              Q.     In regard to the witness response to
              interrogatories . . . [you] stated that [you] adequately investigated
              the cause. [You], however, never filed any motion or depositions
              of potential witnesses . . . . If you never challenged any of the

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-606 | December 18, 2018   Page 3 of 8
        witnesses, specifically both the physician and the forensic
        interviewer, how could you say that the police narrative of events
        was totally substantial to all the charges in the information?


        A.      Why didn’t I file a motion or deposition?


        Q.      And do a deposition, yes.


        A.    In a case like this, a child molesting case, depositions are
        not necessarily discovery tools. I mean, these are of-court
        records, so whoever comes in to testify at one of these, if they
        subsequently don’t show up at trial, they can put in the
        deposition testimony. So no, I never filed for a deposition nor
        did you ever ask me to.


        Q.     So in other words, you never put any of the evidence to
        the test. You claim in the interrogatory that you met with the
        prosecutor to challenge the evidence.


        A.     Yes. I met with the prosecutor four or five times. I looked
        at the videos. I reviewed all the evidence, but no, I did not do a
        deposition in the case.


Id. at 161-62, 164-65. Following the evidentiary hearing, the post-conviction

court entered findings of fact and conclusions of law denying Brown’s petition

for post-conviction relief. This appeal ensued.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-606 | December 18, 2018   Page 4 of 8
                                       Discussion and Decision1
                                               Standard of Review

[5]   Brown appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review in such appeals is clear:


               “The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the
               evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
               “When appealing the denial of post-conviction relief, the
               petitioner stands in the position of one appealing from a negative
               judgment.” Id. at 274. In order to prevail on an appeal from the
               denial of post-conviction relief, a petitioner must show that the
               evidence leads unerringly and unmistakably to a conclusion
               opposite that reached by the post-conviction court. Weatherford v.
               State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
               conviction court in this case entered findings of fact and
               conclusions of law in accordance with Indiana Post-Conviction
               Rule 1(6). Although we do not defer to the post-conviction
               court’s legal conclusions, “[a] post-conviction court’s findings
               and judgment will be reversed only upon a showing of clear
               error—that which leaves us with a definite and firm conviction
               that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
               102, 106 (Ind. 2000) (internal quotation omitted).


      Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).




      1
        It is of no moment that Brown proceeds in this appeal pro se. “[A] pro se litigant is held to the same
      standards as a trained attorney and is afforded no inherent leniency simply by virtue of being self-
      represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014).

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-606 | December 18, 2018                    Page 5 of 8
                                          Issue One: Guilty Plea

[6]   On appeal, Brown first asserts that the post-conviction court erred when it

      denied his petition because he did not enter into his guilty plea knowingly,

      intelligently, and voluntarily. However, in the post-conviction court, Brown

      raised the issue of the validity of his guilty plea only in relation to his claim that

      he had received ineffective assistance of trial counsel. Brown did not present a

      freestanding challenge to his guilty plea to the post-conviction court. See

      Appellant’s App. Vol. 2 at 159. He may not raise the issue for the first time on

      appeal. E.g., A.C. v. Ind. Dep’t of Child Servs. (In re N.C.), 56 N.E.3d 65, 69 (Ind.

      Ct. App. 2016), trans. denied. Accordingly, Brown has not preserved this issue

      for our review, and we do not consider it.


                            Issue Two: Ineffective Assistance of Counsel

[7]   Brown next asserts that the post-conviction court erred when it denied his

      petition because he received ineffective assistance of counsel. As our Supreme

      Court has made clear:


              When evaluating an ineffective assistance of counsel claim, we
              apply the two-part test articulated in Strickland v. Washington, 466
              U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
              State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
              prong, “the defendant must show deficient performance:
              representation that fell below an objective standard of
              reasonableness, committing errors so serious that the defendant
              did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
              McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
              Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
              second prong, “the defendant must show prejudice: a reasonable

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-606 | December 18, 2018   Page 6 of 8
              probability (i.e. a probability sufficient to undermine confidence
              in the outcome) that, but for counsel’s errors, the result of the
              proceeding would have been different.” Id. (citing Strickland, 466
              U.S. at 694, 104 S. Ct. 2052).


      Humphrey, 73 N.E.3d at 682.


[8]   In particular, Brown asserts that his trial counsel rendered ineffective assistance

      when trial counsel failed to advise Brown prior to Brown pleading guilty that he

      would be a credit-restricted felon. Brown also asserts that trial counsel rendered

      ineffective assistance by failing to investigate the State’s charges against Brown.

      However, we conclude that Brown’s arguments on those issues are not

      supported by cogent reasoning and citations to relevant authorities and the

      record. See Appellant’s Br. at 20-25. Rather, Brown’s assertions on those

      issues, insofar as they are even relevant, are nothing more than statements of his

      own conclusions. Such statements, without more, are insufficient to

      demonstrate reversible error, and, as such, Brown has waived appellate review

      of those issues. See Ind. Appellate Rule 46(A)(8)(a).


[9]   Brown’s waiver notwithstanding, his assertion that trial counsel failed to advise

      him prior to the plea agreement that he would be a credit-restricted felon is

      contrary to the evidence most favorable to the judgment, namely, trial counsel’s

      testimony that he did so advise Brown. Likewise, Brown’s assertion that trial

      counsel failed to properly and fully investigate the State’s charges is also

      contrary to trial counsel’s testimony to the post-conviction court. We cannot

      reweigh the evidence on appeal. Accordingly, we conclude that the post-


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-606 | December 18, 2018   Page 7 of 8
       conviction court did not err when it denied Brown’s petition on his claims of

       ineffective assistance of trial counsel.


                                            Issue Three: Sentence

[10]   Last, Brown asserts that the post-conviction court erred when it denied his

       petition because Brown received an erroneous sentence. However, in his plea

       agreement Brown waived the right to appeal his sentence so long as he received

       a sentence at or below thirty-five years executed, which he did receive.

       Moreover, the post-conviction process is not an appropriate vehicle for

       freestanding sentencing challenges. E.g., Hooker v. State, 799 N.E.2d 561, 569

       (Ind. Ct. App. 2003), trans. denied. Accordingly, we do not consider this

       purported issue.


                                                 Conclusion
[11]   Thus, Brown has failed to show that the evidence leads unerringly and

       unmistakably to a conclusion opposite that reached by the post-conviction

       court. We affirm the post-conviction court’s denial of Brown’s petition for post-

       conviction relief.


[12]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-606 | December 18, 2018   Page 8 of 8
