 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any                                       Oct 04 2013, 9:46 am
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




APPELLANT PRO SE:                                  ATTORNEYS FOR APPELLEE:
MARK GREGORY                                       GREGORY F. ZOELLER
Pendleton, Indiana                                 Attorney General of Indiana

                                                   MONIKA PREKOPA TALBOT
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

MARK GREGORY,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )       No. 48A02-1302-PC-198
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                     APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable David A. Happe, Judge
                              Cause No. 48C01-1201-PC-4


                                         October 4, 2013
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
      Mark Gregory (“Gregory”) was ordered to serve an aggregate eighty-eight year

sentence, which, upon petition and after he had served only eleven of those eighty-eight

years, was modified to probation for the remainder of his term. Two months after the

modification, Gregory violated his probation. His probation was revoked and he was

ordered to serve his remaining term of approximately sixty-five years in the Department

of Correction. He subsequently filed a petition for post-conviction relief challenging the

legality of the sentence modification and the effectiveness of his trial and appellate

counsel. The post-conviction court denied his petition and Gregory now appeals pro se

and presents four issues, which we consolidate and restate as:

      I.     Whether the post-conviction court clearly erred in concluding that
             Gregory’s due process rights were not violated by the sentencing
             modification court;

      II.    Whether the post-conviction court clearly erred in concluding that Gregory
             was not denied the effective assistance of trial counsel; and

      III.   Whether the post-conviction court clearly erred in concluding that Gregory
             was not denied the effective assistance of appellate counsel.

      We affirm.

                             Facts and Procedural History

      On May 6, 1998, Gregory pleaded guilty to eight counts of class B felony burglary

and eight counts of class D felony theft under Cause Number 48C01-9803-CF-49

(“Cause No. 49”). On August 17, 1998, the trial court sentenced him to ten years for

each of the eight burglary counts, to run consecutively, and three years for each of the

theft counts, to run concurrently. Gregory’s aggregate sentence was eighty years, with

fifty-five years executed and twenty-five years suspended to probation.

                                            2
      On April 20, 2001, Gregory was charged with class C felony escape under Cause

Number 48C01-9809-CF-226 (“Cause No. 226”). He was sentenced to eight years, with

four years executed and four years suspended to probation. The sentence imposed under

Cause No. 226 was to run consecutive to his eight-year sentence in Cause No. 49.

      Approximately eight years later, after serving approximately eleven years of his

sentence under Cause No. 49, on March 31, 2009, Gregory petitioned for sentence

modification. Following an April 20, 2009 hearing, the trial court denied Gregory’s

request. Gregory filed an amended petition for sentence modification on June 18, 2009.

On July 6, 2009, the trial court held a hearing on Gregory’s petition and granted his

request, ordering that his sentence be “modified to probation for balance of sentence.”

Appellant’s App. pp. 200-01.

      Approximately two months later, on September 3, 2009, the Probation Department

filed a petition for violation of probation in Cause No. 49. The petition alleged that on

August 31, 2009, Gregory violated the terms of his probation by committing burglary and

theft. The Probation Department later filed an amended notice of violation of probation

in Cause Nos. 49 and 226. After holding hearings on June 14, 2010 and August 16, 2010,

the trial court revoked Gregory’s probation and remanded him to the Department of

Correction to serve 20,914 days for Cause No. 49 and eight years for Cause No. 226.




                                           3
        Gregory appealed his probation revocation, arguing that the trial court’s order

remanding him to sixty-five years in the Department of Correction exceeded the original

sentence.1 A panel of this court affirmed the trial court’s judgment.

        On January 27, 2012, Gregory, pro se, filed a petition for post-conviction relief.

He claimed that the sentence modification court erred in failing to inform him of the

maximum penalty for the probation violation. He also argued that the sentence imposed

by the court after the probation violation was illegal, that his counsel during the sentence

modification hearing was ineffective, and that his appellate counsel was ineffective. The

post-conviction court held a hearing on November 8, 2012. On February 13, 2013, the

post-conviction court issued findings of fact and conclusions of law, denying Gregory

relief. Gregory now appeals pro se.

                                        Standard of Review

        Post-conviction proceedings are not “super appeals” through which convicted

persons can raise freestanding issues they failed to raise at trial or on direct appeal.

McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings

afford petitioners a limited opportunity to raise issues that were unavailable or unknown

at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A

post-conviction petitioner bears the burden of establishing grounds for relief by a
1
   On appeal, Gregory argued that the Indiana probation revocation statute, Indiana Code § 35-38-2-3,
limited his prison term following his probation violation to twenty-nine years. Specifically, he argued
that the statute allowed the trial court to impose only the part of the sentence that was suspended at the
time of the initial sentencing. Gregory’s initial sentence carried a suspended term of twenty-five years in
Cause No. 49 and four years in Cause No. 226. A panel of this court found that the remanded sentence
was proper since, in 2009, the balance of the sentences in both causes were modified to probation and the
executed time was thus converted to suspended time. Gregory v. State, 945 N.E.2d 832 (Ind. Ct. App.
2011) trans. denied.

                                                    4
preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On

appeal from the denial of post-conviction relief, the petitioner stands in the position of

one appealing from a negative judgment. Id. To prevail on appeal from the denial of

post-conviction relief, the petitioner must show that the evidence as a whole leads

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

court. Id. at 643-44.

       Where, as here, the post-conviction court makes findings of fact and conclusions

of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer to the

court’s legal conclusions, but the “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.” Id. at 644.

                              I. Sentencing Modification

       Gregory argues that the post-conviction court erred in concluding that the sentence

modification court did not violate his due process rights when it failed to “clearly state

the maximum possible penalty for a probation violation.” Appellant’s Br. at 6. He

asserts:

       [M]odification proceedings are no different than an actual sentencing
       hearing with respect to how the court should approach it. When the court
       agrees to modify a sentence, they are for all intents and purposes
       resentencing a defendant for convictions. The most important part of a
       sentencing hearing for a defendant would be how long the court has
       determined he will spend in prison.

Id.




                                            5
       Gregory further argues that the probation violation court violated his due process

rights when it sentenced him to 57.3 years for his probation violation on Cause No. 49.

He claims, “[t]his is error due to the fact that under statute the sentence for the class B

felony Burglaries could not be suspended below the minimum of six years each.” Id. at 8.

He argues that the sentence modification “should have included a change from

consecutive to concurrent sentences.” Id. Thus, while Gregory frames his argument as a

due process issue, he is actually asserting that the sentence modification court erred when

it re-sentenced him in a way that did not comply with Indiana Code § 35-50-2-2.

       Gregory failed to appeal these freestanding claims of sentencing error following

the modification of his sentence. Both Gregory’s claim that the sentencing modification

court failed to state the maximum penalty for a probation violation and his claim that the

court imposed an illegal sentence were known and available to be raised on direct appeal.

“Issues which were or could have been raised on direct appeal are not available for

review in post-conviction.” Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).

Having failed to raise his sentencing arguments in either a direct appeal or as a new issue

eligible for post-conviction relief, Gregory has waived this issue in this appeal. See

Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002).

                       II. Ineffective Assistance of Trial Counsel

       Gregory next argues that the post-conviction court erred when it concluded that he

did not receive ineffective assistance of trial counsel. To prevail on a claim of ineffective

assistance of counsel, Gregory must show both that counsel’s performance fell below an

objective standard of reasonableness and that the deficient performance prejudiced him.

                                             6
Coleman v. State, 694 N.E.2d 269, 272 (Ind. 1998) (citing Strickland v. Washington, 466

U.S. 668 (1984)).     There is a strong presumption that counsel rendered adequate

assistance. Id. “Evidence of isolated poor strategy, inexperience or bad tactics will not

support a claim of ineffective assistance.” Id. at 273.

       To establish the prejudice prong of the test, the petitioner must show there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Sims v. State, 771 N.E.2d 734, 741 (Ind. Ct. App.

2002), trans. denied. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. “Prejudice exists when the conviction or sentence

resulted from a breakdown in the adversarial process that rendered the result of the

proceeding fundamentally unfair or unreliable.” Coleman, 694 N.E.2d at 272. This

standard applies to both claims of ineffective assistance of trial and appellate counsel.

See Rhoiney v. State, 940 N.E.2d 841, 845 (Ind. Ct. App. 2010), trans. denied.

       Gregory argues that trial counsel was ineffective for failing to “inquire of the court

at the sentence modification hearing regarding the maximum possible penalty Mr.

Gregory faced if he violated his probation” and failing to “inquire what Mr. Gregory’s

sentence was being modified to, allowing the Court to issue an illegal sentence

modification.” Appellant’s Br. at 11.

       At the post-conviction hearing, Gregory’s trial counsel testified that he failed to

inquire of the court the maximum penalty for a probation violation and the specific nature

of Gregory’s sentence modification because he was “surprised that [Gregory was] going

to be getting out the next day and [he] didn’t want to argue with the judge about that.” Tr.

                                             7
p. 9. The post-conviction court found that Gregory’s trial counsel was not ineffective and

that his failure to raise the sentencing issues involved “a strategic decision not to object to

any statutory imperfection in the modification, because the Court indicated that it would

be releasing [Gregory].” Appellant’s App. p. 83.

       We agree with the post-conviction court that counsel’s performance at Gregory’s

sentence modification hearing did not prejudice Gregory. After the hearing, the court

agreed to modify the balance of Gregory’s aggregate eighty-eight year sentence to

probation. Since Gregory had served only approximately eleven years of that sentence, it

is clear that his counsel obtained a very favorable result for Gregory. For these reasons,

we cannot conclude that Gregory received ineffective assistance of trial counsel.

                     III. Ineffective Assistance of Appellate Counsel

       Gregory also argues that his appellate counsel was ineffective for failing to

“challenge the Court’s error in not stating the maximum possible penalty for Mr. Gregory

committing a violation of probation” and failing to “challenge the fact that the Court

sentenced Mr. Gregory for a violation based on an illegal sentence.” Appellant’s Br. at

12.

       Our supreme court has recognized three types of ineffective assistance of appellate

counsel: (1) denial of access to appeal; (2) failure to raise issues that should have been

raised; and (3) failure to present issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203

(Ind. 2001).

       When a petitioner claims the denial of effective assistance of appellate
       counsel because counsel did not raise issues the petitioner argues should
       have been raised, reviewing courts should be particularly deferential to

                                              8
       counsel’s strategic decision to exclude certain issues in favor of others,
       unless such a decision was unquestionably unreasonable. However, this
       does not end our analysis. Even if we determine that counsel’s choice of
       issues was not reasonable, a petitioner must demonstrate a reasonable
       probability that the outcome of the direct appeal would have been different
       in order to prevail.

Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006) (citations and quotation marks omitted).

       We must determine “(1) whether the unraised issues are significant and obvious

from the face of the record; and (2) whether the unraised issues are clearly stronger than

the raised issues.” Gray v. State, 841 N.E.2d 1210, 1214 (Ind. Ct. App. 2006), trans.

denied (citation omitted). If this analysis establishes deficient performance on counsel’s

part, we then analyze whether the issue or issues that counsel failed to raise clearly would

have been more likely to result in reversal or a new trial than the issue or issues that

counsel actually raised. Williamson v. State, 798 N.E.2d 450, 454 (Ind. Ct. App. 2003).

The ultimate issue under the prejudice prong is whether, but for counsel’s error or errors,

there is a reasonable probability that the outcome of the defendant’s direct appeal would

have been different. Id.

       Here, Gregory argues, “[t]he two due process issues that counsel failed to raise are

clearly issues in which the Court would grant reversal of the probation violation sentence.”

Appellant’s Br. at 13.     We disagree.    Appellate counsel filed the appeal from the

probation violation proceeding rather than from the sentence modification. See Gregory

v. State, 945 N.E.2d 832 (Ind. Ct. App. 2011) trans. denied. Therefore, any argument as

to the propriety of the sentence modification was unavailable to Gregory. Counsel’s

challenge to the length of the sentence imposed as a result of Gregory’s probation


                                             9
violation was the only issue appellate counsel could properly raise on appeal. See

Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind. 2002) (providing that defendant could

not challenge trial court’s imposition of consecutive sentences for two counts of forgery

on appeal from his probation revocation, since the issue of permissibility of his sentence

under sentencing statute was not before trial court in his probation revocation

proceeding). Gregory cannot raise a claim of ineffective assistance of appellate counsel

for an appeal that does not exist. For these reasons, we conclude that Gregory has failed

to establish ineffective assistance of appellate counsel.

                                        Conclusion

       For reasons unknown to this court, Gregory squandered a truly life-changing

opportunity to put a long prison sentence behind him when he violated his probation

hardly two months after his release. Gregory’s post-conviction claim that his sentence

modification was improper was known and could have been raised on direct appeal but

was not and, thus, was waived.        Gregory also has not established that he received

ineffective assistance of trial or appellate counsel.       We therefore affirm the post-

conviction court’s denial of Gregory’s petition for post-conviction relief.

       Affirmed.

NAJAM, J., and BROWN, J., concur.




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