Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            Sep 03 2013, 5:30 am
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.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

VINCENT M. CAMPITI                                 GREGORY F. ZOELLER
Nemeth Feeney Masters & Campiti                    Attorney General of Indiana
South Bend, Indiana
                                                   GARY R. ROM
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

ROBERT J. WININGS,                                 )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )       No. 20A03-1301-PC-26
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                     APPEAL FROM THE ELKHART SUPERIOR COURT
                        The Honorable George W. Biddlecome, Judge
                       Cause Nos. 20D03-1201-PC-4, 20D03-1201-PC-5



                                       September 3, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
        Appellant-Petitioner Robert J. Winings pled guilty to and was convicted of Class B

felony dealing in methamphetamine and Class A felony dealing in methamphetamine within

1000 feet of a school. Winings sought post-conviction relief (“PCR”), arguing that the

factual basis was insufficient to support his guilty plea for the Class A felony conviction.

Winings also argues that he received ineffective assistance of trial counsel. Winings now

appeals from the denial of his PCR petition. Concluding that Winings waived his challenge

to the sufficiency of the factual basis to sustain his Class A felony conviction by failing to

include the relevant documents in the record on appeal, and that Winings did not receive

ineffective assistance of trial counsel, we affirm.

                           FACTS AND PROCEDURAL HISTORY1

        On or about November 16, 2007, the State charged Winings under Cause Number

20D03-0711-FA-73 (“Cause No. FA-73”) with Class A felony dealing in methamphetamine

and Class D felony possession of chemical reagents or precursors with the intent to

manufacture controlled substances. The charges included in Cause No. FA-73 arose from

incidents that occurred at Winings’s residence on November 13, 2007. David W. Newman

served as defense counsel for Winings in the criminal proceedings that related to Cause No.

FA-73.

        On May 23, 2008, Winings was arrested after officers discovered an active



        1
          Winings did not include numerous relevant documents in his submissions on appeal. As a result,
some of the facts relating to the underlying criminal proceedings are derived from the post-conviction court’s
order denying Winings’s request for relief and the probable cause affidavit relating to Cause Number 20D03-
0805-FA-34.

                                                      2
methamphetamine lab in the back of his pick-up truck during a traffic stop. The lab emitted a

strong smell of ammonia. The traffic stop occurred within 1000 feet of York Elementary

School. During the traffic stop, Winings’s passenger admitted to the officers that she and

Winings had been manufacturing methamphetamine and that she was hiding

methamphetamine in her private region. On or about May 23, 2008, the State charged

Winings under Cause Number 20D03-0805-FA-34 (“Cause No. FA-34”) with Class A felony

dealing in methamphetamine within 1000 feet of a school. Newman also served as defense

counsel for Winings in the criminal proceedings that related to Cause No. FA-34.2

       On March 19, 2009, Winings pled guilty to Class B felony dealing in

methamphetamine under Cause No. FA-73 and Class A felony dealing in methamphetamine

within 1000 feet of a school under Cause No. FA-34. In exchange for Winings’s plea, the

State agreed to dismiss an unrelated Class D felony charge and agreed that the executed

portion of Winings’s sentence would be capped at forty years.3 On April 23, 2009, Winings

was sentenced pursuant to the terms of the plea agreement.4 Winings did not file a direct

appeal.

       On December 30, 2011, Winings, by counsel, filed a PCR petition. The post-

conviction court conducted evidentiary hearings on Winings’s PCR petition on May 30,


       2
           Newman also represented Winings in an unrelated third criminal case.
       3
          Winings’s sentences were required to be served consecutively because Winings committed the
offense charged in Cause No. FA-34 while out on bond in Cause No. FA-74.
       4
           Winings’s sentence included five years of probation in addition to the forty-year executed sentence.


                                                       3
2012, and July 19, 2012. During these hearings, Winings, by counsel, presented argument in

support of his petition. Newman also testified about his representation of Winings during the

trial court proceedings. On December 28, 2012, the post-conviction court issued an order

denying Winings’s request for PCR. This appeal follows.

                            DISCUSSION AND DECISION

       Post-conviction procedures do not afford the petitioner with a super-appeal. Williams

v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a narrow remedy for

subsequent collateral challenges to convictions, challenges which must be based on grounds

enumerated in the post-conviction rules. Id. A petitioner who has been denied PCR appeals

from a negative judgment and as a result, faces a rigorous standard of review on appeal.

Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001); Collier v. State, 715 N.E.2d 940, 942 (Ind.

Ct. App. 1999), trans. denied.

       Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745

(Ind. 2002). Therefore, in order to prevail, a petitioner must establish his claims by a

preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745.

When appealing from the denial of a PCR petition, a petitioner must convince this court that

the evidence, taken as a whole, “leads unmistakably to a conclusion opposite that reached by

the post-conviction court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is

without conflict and leads to but one conclusion, and the post-conviction court has reached

the opposite conclusion, that its decision will be disturbed as contrary to law.” Godby v.

State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. The post-conviction court is

                                             4
the sole judge of the weight of the evidence and the credibility of the witnesses. Fisher v.

State, 810 N.E.2d 674, 679 (Ind. 2004). We therefore accept the post-conviction court’s

findings of fact unless they are clearly erroneous but give no deference to its conclusions of

law. Id.

                  I. Sufficiency of Evidence to Support Factual Basis

       Winings argues on appeal that the post-conviction court erroneously denied his PCR

petition because the factual basis presented during the guilty plea hearing was insufficient to

sustain his conviction for Class A felony dealing in methamphetamine within 1000 feet of a

school.

       A court may not accept a guilty plea unless the court determines that a
       sufficient factual basis exists to support the plea. Rhoades v. State, 675 N.E.2d
       698, 700 (Ind. 1996) (citing Ind. Code § 35-35-1-3). A factual basis may be
       established by relatively minimal evidence about the elements of the crime
       from which the court could reasonably conclude that the defendant is guilty.
       Id. A trial court’s finding of an adequate factual basis is presumptively
       correct. Id. Additionally, the standard for a sufficient factual basis to support
       a guilty plea is less rigorous than that required to support a conviction. Id. at
       702. “Reasonably concluding” that a defendant is guilty for purposes of a
       factual basis is not the same as concluding guilt beyond a reasonable doubt.
       Id.

Graham v. State, 941 N.E.2d 1091, 1098 (Ind. Ct. App. 2011). “On appeal from the denial of

a petition for post-conviction relief, the burden is on the petitioner to provide a record

adequate for review.” Lile v. State, 671 N.E.2d 1190, 1193 (Ind. Ct. App. 1996). “Failure to

do so has been found to be grounds for waiver of any alleged error based upon the absent

material.” Cox v. State, 475 N.E.2d 664, 667 (Ind. 1985) (noting that a criminal defendant

has a duty to provide a proper record for appeal so that an intelligent review of the issues may

                                               5
be made).

       In the instant matter, our review of Winings’s claim regarding the sufficiency of the

factual basis to sustain his Class A felony conviction is frustrated by Winings’s failure to

include the transcript of the guilty plea hearing or the plea itself in the record on appeal.

Winings does not claim that either the transcript or a copy of the plea was unavailable for

submission to this court on appeal. In addition, the post-conviction court did not make any

findings specifically relating to the testimony which made up the factual basis during the

guilty plea hearing. As such, we are unable to review Winings’s claim regarding the

sufficiency of the factual basis to sustain his guilty plea and Class A felony conviction.

Because Winings had the burden to provide the court with an adequate record for review, and

Winings has failed to do so, we conclude that Winings has waived this argument on appeal.

See Cox, 475 N.E.2d at 667; Lile, 671 N.E.2d at 1193.

                           II. Ineffective Assistance of Counsel

       The right to effective counsel is rooted in the Sixth Amendment to the United States

Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The Sixth Amendment

recognizes the right to the assistance of counsel because it envisions counsel’s playing a role

that is critical to the ability of the adversarial system to produce just results.’” Id. (quoting

Strickland v. Washington, 466 U.S. 668, 685 (1984)). “The benchmark for judging any claim

of ineffectiveness must be whether counsel’s conduct so undermined the proper function of

the adversarial process that the trial court cannot be relied on as having produced a just

result.” Strickland, 466 U.S. at 686.

                                               6
       A successful claim for ineffective assistance of counsel must satisfy two components.

Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first prong, the petitioner must

establish that counsel’s performance was deficient by demonstrating that counsel’s

representation “fell below an objective standard of reasonableness, committing errors so

serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.”

Id. We recognize that even the finest, most experienced criminal defense attorneys may not

agree on the ideal strategy or most effective way to represent a client and therefore, under

this prong, we will assume that counsel performed adequately and defer to counsel’s strategic

and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). Isolated mistakes,

poor strategy, inexperience, and instances of bad judgment do not necessarily render

representation ineffective. Id.

       Under the second prong, the petitioner must show that the deficient performance

resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by

demonstrating that there is “a reasonable 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.

       A petitioner’s failure to satisfy either prong will cause the ineffective assistance of

counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough the

two parts of the Strickland test are separate inquires, a claim may be disposed of on either

prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (citing Williams, 706 N.E.2d

at 154).

                                              7
       Winings challenges the post-conviction court’s determination that Newman was not

ineffective. Specifically, Winings claims that Newman was ineffective for failing to tell him

about certain statutorily-defined defenses that could have potentially been available to him in

Cause No. FA-34. Winings argues that he would not have pled guilty if Newman would have

informed him of the defenses, which he claims would have applied to his case.

       Indiana Code section 35-48-4-1.1 provides that a person who knowingly or

intentionally manufactures, finances the manufacture of, delivers, or finances the delivery of

methamphetamine commits Class B felony dealing in methamphetamine. The offense is

elevated to a Class A felony if the act occurs within 1000 feet of a school. Ind. Code § 35-

48-4-1.1(b)(3)(B). Indiana Code subsections 35-48-4-16(b) and (c) provide that it is a

defense to the enhancement to a Class A felony if the individual was only within 1000 feet of

the school briefly, no person under the age of eighteen was present within 1000 feet of the

school, or the individual was only within 1000 feet of the school at the request or suggestion

of law enforcement. These defenses, however, apply only to the possession, delivery, or

financing the delivery of methamphetamine and do not apply to the manufacture of

methamphetamine. Ind. Code § 35-48-4-16(d).

       Again, in the instant matter, Winings pled guilty to the elevated Class A felony. In

claiming that Newman was ineffective for failing to inform him of the defenses listed in

Indiana Code subsections 35-48-4-16(b) and (c), Winings argues that there were no children

present when he was pulled over in front of York Elementary, and that he was only in the

defined area briefly. Winings also argues that he was only present in the defined area at the

                                              8
request or suggestion of law enforcement.

       During the evidentiary hearing, Newman testified that his general practice is to review

his cases to determine if there are any defenses that are available to his clients, and then to

discuss any potential defenses with said clients. Newman testified that he followed this

general practice with regard to Winings. Newman stated that he believed that he had

discussed all potentially available defenses with Winings, although he could not remember

talking to Winings specifically about Indiana Code subsections 35-48-4-16(b) and (c).

Newman also testified that he had discussed Winings’s potential defenses, including those

listed in Indiana Code subsections 35-48-4-16(b) and (c), with the deputy prosecutor assigned

to prosecute the charges levied against Winings.

       Newman expressed concern about whether the defenses would have applied to

Winings’s case because the State could likely prove that, while there might not have been

children present at the school, there were children present within 1000 feet of the school at

the time Winings was pulled over. Newman also expressed concern about the applicability

of the defenses because it would be difficult, if not impossible, to prove at trial that Winings

was only in the area at the request or suggestion of law enforcement. Winings does not argue

that he could not have taken a different route that would not have passed the school when he

left the property, at which he had been manufacturing methamphetamine, in an attempt to

avoid getting caught by the police. In addition, Newman indicated that it was unclear

whether the defenses would have applied to Winings’s case because Winings was alleged to

have been manufacturing methamphetamine, not possessing, delivering, or financing the

                                               9
delivery of the drug.

       Newman also outlined the other actions he took with regard to the specific charges

levied against Winings. Specifically, Newman testified that he met with Winings, either in

person or by telephone, on thirteen different occasions. Newman conducted discovery in all

three criminal matters, reviewed the discovered materials with Winings, and conducted

depositions. In Cause No. FA-34, Newman filed a motion to suppress the evidence

stemming from the traffic stop, which he indicated that he “candidly thought was our best

defense in the case.” Tr. p. 74. Newman discussed the potential penalties that Winings faced

if convicted of all charges and explained that the sentences were considered “mandatorily

consecutive” because Winings committed the criminal act alleged in Cause No. FA-34 while

out on bond for Cause No. FA-73. Tr. p. 64. Newman also negotiated a plea deal with the

State, which he believed represented the best possible outcome for Winings given the State’s

evidence against him.

       Again, the record demonstrates that Newman conducted a thorough review of

Winings’s cases, including the possible penalties that Winings could face if convicted as well

as the possible defenses that Winings could raise at trial. Newman discussed the potential

penalties and defenses with Winings. Newman considered the applicability of the defenses

outlined in Indiana Code subsections 35-48-4-16(b) and (c), although he could not

specifically remember discussing these potential defenses with Winings. Newman stated

that, while it was possible that he did discuss these potential defenses with Winings, it was

also possible that he did not. Newman made tactical decisions in his attempts to garner the

                                             10
best possible outcome for Winings, including filing a motion to suppress the evidence

stemming from the traffic stop, which, again, he “candidly thought was our best defense in

the case.” Tr. p. 74. Newman also managed to negotiate a plea deal by which the State

agreed to reduce one of the two Class A felony charges that Winings was facing to a Class B

felony; cap the executed portion of Winings’s sentence, which could potentially have

exceeded one hundred years if Winings had been convicted of each of the charged offenses,

to forty years; and dismiss a felony charge that was charged under an unrelated cause

number.

       Newman’s testimony regarding his strategic and tactical decisions as well as the steps

he took to insure that Winings receive a favorable outcome, lead us to the opinion that

Newman performed adequately. See Smith, 765 N.E.2d at 585. As such, we conclude that

Winings cannot establish that he suffered ineffective performance of trial counsel because he

has failed to demonstrate that Newman’s performance was deficient. See Reed, 866 N.E.2d

at 769 (providing that in order to prove a claim of ineffective assistance of counsel, petitioner

must prove both prongs set forth in Strickland, i.e., defective performance and prejudice); see

Grinstead, 845 N.E.2d at 1031 (providing that a claim of ineffective assistance of counsel

can be disposed of on either prong).

       The judgment of the post-conviction court is affirmed.

BAILEY, J., and MAY, J., concur.




                                               11
