Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not                                               Sep 03 2013, 5:33 am
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

APELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

GUY J. IVESTER                                   GREGORY F. ZOELLER
New Castle, Indiana                              Attorney General of Indiana

                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

GUY IVESTER,                                     )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )       No. 33A04-1209-PC-491
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                      APPEAL FROM THE HENRY CIRCUIT COURT
                       The Honorable David A. Kolger, Special Judge
                              Cause No. 33C01-1011-PC-5




                                     September 3, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                  Case Summary and Issues

       Guy J. Ivester, pro se, appeals the post-conviction court’s denial of his petition for

post-conviction relief. Ivester presents five issues on appeal: 1) whether he was denied

the effective assistance of his trial counsel; 2) whether his guilty plea was entered

voluntarily; 3) whether there was prosecutorial misconduct during these proceedings; 4)

whether the trial court abused its discretion in not penalizing the State for late discovery

compliance; and 5) whether the post-conviction court abused its discretion in denying

certain of Ivester’s discovery requests. Concluding that Ivester was not denied the

effective assistance of his trial counsel, that he entered his guilty plea voluntarily, that his

claims of prosecutorial misconduct and trial court abuse of discretion are unavailable, and

that there was no abuse by the post-conviction court, we affirm.

                                Facts and Procedural History

       On October 2, 2008, Ivester was charged with three counts of dealing in a

schedule II controlled substance, all as Class A felonies, and maintaining a common

nuisance, as a Class D felony. The charges stemmed from at least two separate hand-to-

hand purchases in July of 2008, in which Detective Aaron Strong of the Henry County

Area Drug Task Force, working undercover, purchased oxycodone and other controlled

substance pills from Ivester. The State offered various plea agreements to Ivester, who

refused all offers, believing that the State, once past discovery deadlines, would not be

able to have the relevant lab report admitted at trial and therefore would not be able to

prove its case. Trial was scheduled for September 21, 2009. On the day of trial, the court

denied Ivester’s motion in limine to exclude the lab report. Following the denial of the

motion, and prior to jury voir dire, Ivester entered into a plea agreement with the State.
                                               2
Pursuant to the plea agreement, Ivester pleaded guilty to count II, dealing in a schedule II

controlled substance as a Class A felony, and his sentence was to be capped at twenty

years.

         The trial court held a sentencing hearing in October of 2009. Prior to sentencing,

Ivester’s counsel orally moved the court to permit Ivester to withdraw his guilty plea,

which motion the court denied.           The court sentenced Ivester to twenty years

imprisonment, with two years suspended to probation.

         In November of 2010, Ivester filed a pro se petition for post-conviction relief,

which was later amended. The post-conviction court held a hearing in June of 2012, and

in August of 2012 the court issued its findings of fact and conclusions of law, denying

Ivester’s petition. This appeal followed. Additional facts will be supplied as necessary.

                                  Discussion and Decision

                                   I. Standard of Review

         To prevail on appeal from the denial of post-conviction relief, the petitioner must

show that the evidence is without conflict and leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Thacker v. State, 715

N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied.           A post-conviction court’s

findings and judgment will be reversed only upon a showing of clear error, which is error

that leaves us with a definite and firm conviction that a mistake has been made.

Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). We accept the post-

conviction court’s findings of fact unless they are clearly erroneous, but we do not defer

to the post-conviction court’s conclusions of law. Id. We examine only the probative

evidence and reasonable inferences that support the post-conviction court’s determination
                                              3
and we do not reweigh the evidence or judge the credibility of the witnesses. Conner v.

State, 711 N.E.2d 1238, 1245 (Ind. 1999), cert. denied, 531 U.S. 829 (2000).

                        II. Ineffective Assistance of Trial Counsel

                                 A. Standard of Review

       We review claims of ineffective assistance of counsel under the two prong test set

forth in Strickland v. Washington, 466 U.S. 668 (1984). Bieghler v. State, 690 N.E.2d

188, 192 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). To prevail on a claim of

ineffective assistance of counsel, the petitioner must show that his counsel’s performance

was deficient and that the lack of reasonable representation prejudiced him. Randolph v.

State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied. To satisfy the first

prong, the petitioner must show that counsel’s performance was deficient in that

counsel’s representation fell below an objective standard of reasonableness and that

counsel committed errors so serious that petitioner did not have the “counsel” guaranteed

by the Sixth Amendment. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To show

prejudice, the petitioner must show a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different. Id. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.         Pruitt v. State, 903

N.E.2d 899, 906 (Ind. 2009).

       Under this standard, judicial scrutiny of counsel’s performance must be highly

deferential, and there is a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.       Bieghler, 690 N.E.2d at 192 (citing

Strickland, 466 U.S. at 689). Counsel is afforded considerable discretion in choosing

strategy and tactics and we will accord that decision deference. Randolph, 802 N.E.2d at
                                             4
1013. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do

not necessarily render representation ineffective. Id.

         In a case such as this one, where the petitioner pleaded guilty, the two prongs

remain, but our supreme court has outlined what is required to show prejudice when there

was no trial. In all cases, the petitioner must demonstrate “a reasonable probability that

the hypothetical reasonable defendant would not have pled guilty and elected to go to

trial if properly advised.” Segura v. State, 749 N.E.2d 496, 509 (Ind. 2001) (Sullivan, J.,

concurring in result). The petitioner must do more than simply allege that a plea would

not have been entered. Id. at 507. Where the alleged error is one that would have

affected a defense or is related to a failure to mitigate a penalty, the petitioner must show

that there would have been a reasonable probability of success at trial. Id. at 503, 507.

Where the alleged error is counsel’s omission or misdescription of penal consequences

that is relevant to both a plea and a conviction at trial, however, the bar is somewhat

lower.    In those cases, the petitioner must allege “‘special circumstances’ or . . .

‘objective facts’ supporting the conclusion that the decision to plead guilty was driven by

the erroneous advice.” Id. at 507 (citations omitted).

         Finally, we note that the two prongs of the Strickland test are separate and

independent inquiries. Therefore, if it is easier to dispose of an ineffectiveness claim on

the ground of lack of sufficient prejudice, we may determine the prejudice prong first

without inquiring into whether counsel’s performance was adequate.            Thacker, 715

N.E.2d at 1284.




                                             5
                                           B. Ivester’s Trial Counsel

         Ivester presents several arguments regarding his trial counsel’s assistance. Ivester

first argues that his counsel was ineffective for failing to compel discovery, specifically

disclosure of the identity of a confidential informant involved in the transactions upon

which the charges against him were based. This appears to relate back to several issues

that Ivester raised with the post-conviction court below.1 It seems that the “informant” to

whom Ivester refers might be the store clerk who facilitated Detective Strong’s meeting

with Ivester.         The post-conviction court noted that the nature of the underlying

transaction—i.e. a hand-to-hand transaction from Ivester to Detective Strong—renders

the “proposed observations of any other civilian witness exceedingly insignificant.”

Post-Conviction Court Findings of Fact and Conclusions of Law at 19. Additionally,

Ivester was aware at the time he pleaded guilty that the identity of any “informant” had

not been disclosed. As for Ivester’s claim that the informant could have established

entrapment as a viable defense, the post-conviction court noted that a number of specific

facts in Ivester’s case negated the possibility of entrapment as a defense, namely that

there were multiple transactions, agreements as to price, and that one transaction occurred

in Ivester’s home. Ivester has not shown that, but for counsel’s actions, he would not

have pleaded guilty. We see no clear error on the part of the post-conviction court.

         Ivester next argues that his counsel was ineffective in failing to depose the State’s

witnesses. Ivester’s trial counsel, John Hovanec, testified at the post-conviction relief

hearing. Hovanec testified that he did not depose Detective Strong because he had

         1
            Ivester’s brief is difficult to decipher in parts, although it does not appear that he is attempting to raise
issues here on appeal that were not raised below. See Walker v. State, 843 N.E.2d 50, 58 n.2 (Ind. Ct. App. 2006)
(“Issues not raised in the petition for post-conviction relief may not be raised for the first time on post-conviction
appeal.” ) (citation omitted), trans. denied.
                                                             6
viewed the videotapes of the drug transactions, and taped statements from Detective

Strong, and Hovanec did not believe that a deposition would add anything or that

Detective Strong would deny his earlier statements. The post-conviction court noted that

Detective Strong testified at the post-conviction relief hearing, corroborating Hovanec’s

testimony, and the post-conviction court concluded that deposing Detective Strong would

have been a waste of counsel’s time and may even have solidified the State’s case against

Ivester. As for deposition of the lab analyst who ran the lab report on the drugs that

Detective Strong purchased from Ivester, Hovanec testified that their trial strategy was to

try to keep the lab results out of court, and that depositing the lab analyst would only

support the report and would not help Ivester’s case.

       Ivester’s third complaint relates to Hovanec not moving to suppress the drug

analysis results. Firstly, Hovanec did in fact move in limine to have the report excluded

due to the late discovery of the report, and the court denied the motion. Secondly, the

State correctly notes that, to the extent that the motion did not already encompass the lab

analyst’s testimony, it is likely, based on the court’s denial of the first motion, that the

court would also have denied any motion to exclude the analyst’s testimony. We do not

believe that Ivester was prejudiced by any alleged failure on Hovanec’s part.

       Ivester’s fourth claim is that Hovanec incorrectly advised him regarding a

potential sentence under the plea. Ivester claims that he was led to believe that his entire

sentence would likely be suspended. He also claims that the trial judge stated that she

would not “penalize” him if he pleaded guilty, and that this meant that he would not

receive an executed sentence. We agree with both the State and the post-conviction court

that the trial judge’s statements were not an indication that the court would not give
                                             7
Ivester an executed sentence. Rather, because of late discovery on the part of the State,

the court was willing to do what it would not normally do—accept a guilty plea from

Ivester at that late stage—rather than penalizing him for reacting only then to the belated

lab report. As for sentencing advice, Hovanec testified that he and Ivester spoke at length

about possible sentences and outcomes up to the date of trial, as Ivester was offered

various plea agreements. The State notes that if Ivester had not pleaded guilty, he would

have faced a possible sentence much higher than the twenty year cap provided by the plea

agreement. The court questioned Ivester before accepting his plea, and specifically made

sure he understood that the cap on his sentence was twenty years and that he would be

able to argue for suspension, but the State would also be able to ask for the entire twenty

years executed. The court also made sure that Ivester understood that he was waiving his

right to appeal “whatever sentences [sic] issued by the Court.” Petitioner’s Exhibit 1, at

9. Finally, the court received assurances from Ivester that he was not expecting anything

different from what the judge had just reviewed, and that he was not forced into the plea.

Ivester fails to show objective facts supporting a conclusion that his decision to plead was

induced by erroneous advice.

       Finally, Ivester argues that Hovanec was ineffective in failing to file a written

motion to withdraw the guilty plea. It is true that after entry of a guilty plea but before

sentencing, a motion to withdraw must be made in writing. Ind. Code § 35-35-1-4(b).

However, we need not reach whether this constituted deficient performance, because we

agree with the post-conviction court that Ivester was not prejudiced by any failure on

Hovanec’s part. Following Hovanec’s oral motion to withdraw Ivester’s plea, the trial

court noted several reasons that it would have denied the motion to withdraw even if it
                                             8
had been properly presented in written form. Namely, that Ivester had appeared in court

and provided a factual basis under oath; that the court had reviewed Ivester’s rights and

the implications of the plea with him and that he understood the rights he was waiving;

that the State would have been substantially prejudiced by a withdrawal of the plea at that

point; and that Ivester presented no evidence indicating that his withdrawal was necessary

to prevent a manifest injustice.

         In sum, testimony at the post-conviction relief hearing showed that Hovanec

communicated with Ivester and worked with him to develop a strategy, counseled him to

try to achieve the best possible outcome, and that Hovanec was prepared to proceed with

trial as scheduled. Ivester has not shown any prejudice as a result of any possible failures

on the part of his trial counsel, or that he would not have pleaded guilty had his counsel

done things differently. The post-conviction court did not clearly err in denying Ivester’s

claim.

                             III. Voluntariness of Guilty Plea

                                   A. Standard of Review

         On review of a guilty plea, we look at all of the evidence before the post-

conviction court. Moffitt v. State, 817 N.E.2d 239, 249 (Ind. Ct. App. 2004), trans.

denied. If evidence exists that supports the post-conviction court’s determination that the

guilty plea was voluntary, intelligent and knowing, we will not reverse. Id. When a

guilty plea is attacked because of alleged misinformation concerning sentencing, the issue

of the validity of such plea is determined by the following two-part test: (1) whether the

defendant was aware of actual sentencing possibilities; and (2) whether the accurate

information would have made any difference in his decision to enter the plea. Id.
                                             9
                             B. Voluntariness of Ivester’s Plea

       Ivester argues that his guilty plea was involuntary because of the State’s late

discovery, resulting in a lack of preparedness on the part of his trial counsel, and because

he believed that his entire sentence would be suspended based on the trial judge’s

statement that she would not “penalize” him.

       As discussed above, Ivester misunderstands the trial judge’s statement about not

penalizing him. The statement did not indicate that the court would suspend Ivester’s

entire sentence, but rather indicated the reason why the court was allowing a plea to be

entered so late in the process. Additionally, there is evidence to support the post-

conviction court’s determination that Ivester was advised as to the potential sentence

under his plea agreement and that he stated under oath his comprehension of the possible

sentence. The post-conviction court also noted that Ivester testified at the post-conviction

relief hearing, and that at no point did he state that he believed he would get to go home

and not be sent to prison as a result of the plea agreement. Rather, he stated that he

believed he deserved a second chance. We conclude that Ivester was aware of the actual

sentencing possibilities, and any more accurate information would not have made a

difference in his decision to accept the plea.

       As for the State’s late discovery, discovery is not generally relevant to

voluntariness—while it may go to the strength of the State’s case, it does not go to

whether Ivester’s plea was voluntary.        Nonetheless, Hovanec testified that he had

discussed with Ivester the likelihood that the report would be given late, and that the

court would nonetheless allow it to be entered into evidence. Hovanec also testified that

he was fully prepared for trial, and the post-conviction court found Hovanec to be
                                                 10
credible. There is evidence to support the post-conviction court’s determination that

Ivester’s plea was voluntary.

                                IV. Prosecutorial Misconduct

       Ivester next argues that the prosecutor in his case engaged in misconduct by

failing to disclose the informant, among other claims.         Ivester notes that claims of

prosecutorial misconduct are generally reserved for direct appeal, but argues that

fundamental error is available to him as a post-conviction relief claim. Ivester cites to

Keller v. State, 481 N.E.2d 1109, 1112 (Ind. Ct. App. 1985), for the proposition that his

prosecutorial misconduct issue would have been available on direct appeal (we need not

delve into the contemporaneous objection that would have been required to make the

issue available on appeal).      However, as the State notes, fundamental error is not

available as a free-standing issue on petition for post-conviction relief. Graham v. State,

941 N.E.2d 1091, 1097 (Ind. Ct. App. 2011). This argument is therefore not available to

Ivester.

       Nonetheless, we briefly observe that prosecutorial misconduct requires a

determination both that the prosecutor engaged in misconduct and that such misconduct

placed the defendant in a position of grave peril, and that the potential for peril is

measured by the probable persuasive effect on the jury’s decision. Ratliff v. State, 741

N.E.2d 424, 428-29 (Ind. Ct. App. 2000), trans. denied.          We agree with the post-

conviction court here that it is relevant that Ivester was never before a jury. Moreover,

we also agree that his attorney’s testimony that he was fully prepared to proceed to trial

and further discovery was not necessary shows that Ivester was not placed in a position of

grave peril.
                                            11
                                 V. Abuse of Discretion of Trial Court

        Ivester also argues that the trial court abused its discretion in not excluding

evidence that was submitted after discovery deadlines. The State notes that by pleading

guilty, Ivester waived any challenge to the pre-trial rulings of the trial court. Neville v.

State, 663 N.E.2d 169, 172 (Ind. Ct. App. 1996). As noted above, any free-standing

claim of fundamental error is also not available here.2

                         VI. Abuse of Discretion of Post-Conviction Court

        Finally, Ivester argues that the post-conviction court abused its discretion when it

denied certain of his discovery requests, namely requests to have the video of his drug

transaction with Detective Strong and to call the “confidential informant” as a witness

during the post-conviction relief hearing.

        The post-conviction court is afforded broad discretion in ruling on discovery

matters, and we will affirm those decisions absent a showing of clear error and resulting

prejudice. Wilkes v. State, 984 N.E.2d 1236, 1251 (Ind. 2013). We see no such clear

error here. Ivester’s trial counsel testified as to having seen the video and what was on it,

and Detective Strong testified at the post-conviction relief hearing as well. It is not clear

what the video itself would have added to Ivester’s post-conviction claims. The same

goes for denying Ivester’s request to call the confidential informant as a witness. As we

noted above, we are not convinced that any such witness would have added anything to

the evidence that Ivester already presented at his hearing, and we see no clear error on the

part of the post-conviction court in denying Ivester’s request.


        2
            Ivester again references the trial court’s statement about not “penalizing” him here within his argument
that the trial court abused its discretion. We again point out that Ivester seems to have misunderstood the trial
court’s statement.
                                                        12
                                        Conclusion

       Concluding that Ivester was not denied the effective assistance of his trial counsel,

that his guilty plea was voluntary, that his claim of prosecutorial misconduct is

unavailable but nonetheless there was no such misconduct, that his claim of abuse of

discretion on the part of the trial court is unavailable, and that there was no abuse of

discretion on the part of the post-conviction court, we affirm.

       Affirmed.

RILEY, J., and KIRSCH, J., concur.




                                             13
