Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                             May 28 2013, 9:39 am
any 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:

DAVID STREETER                                    GREGORY F. ZOELLER
Pendleton, Indiana                                Attorney General of Indiana

                                                  IAN MCLEAN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID STREETER,                                   )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )      No. 44A04-1110-PC-640
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                    APPEAL FROM THE LAGRANGE SUPERIOR COURT
                          The Honorable George E. Brown, Judge
                              Cause No. 44D01-0604-PC-1



                                         May 28, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                               STATEMENT OF THE CASE

          David Streeter appeals the post-conviction court’s denial of his amended petition

for post-conviction relief. Streeter presents three issues for our review, and the State

raises an issue on cross appeal. We consolidate the issues and address the following

issues:

          1.    Whether Streeter timely filed his notice of appeal;

          2.    Whether Streeter’s guilty plea was made knowingly, voluntarily, or
                intelligently;

          3.    Whether Streeter received the effective assistance of trial counsel;
                and

          4.    Whether Streeter may argue for the first time on appeal that the trial
                court abused its discretion when it sentenced him.

          We affirm.

                         FACTS AND PROCEDURAL HISTORY

          In 2002, Streeter pleaded guilty to one count of child molesting, as a Class A

felony; two counts of child molesting, as Class C felonies; and to being a repeat sexual

offender. The trial court sentenced him to an aggregate term of sixty years in the

Department of Correction. Streeter did not appeal.

          On April 10, 2006, Streeter filed his petition for post-conviction relief, which he

amended on September 20, 2010. In his amended petition, Streeter alleged that his guilty

plea to the Class A felony had not been made knowingly, voluntarily, and intelligently

and that he had also been denied the effective assistance of counsel. The post-conviction

court held an evidentiary hearing on Streeter’s petition on July 6, 2011. The court denied

his petition on October 3. This appeal ensued.
                                               2
                                 DISCUSSION AND DECISION

                                   Issue One: Notice of Appeal

        We first consider the State’s assertion on cross-appeal that Streeter did not timely

file his notice of appeal with the trial court clerk.1 According to the State, Streeter’s

notice of appeal was due on November 2, 2011, but the post-conviction court’s

chronological case summary does not reflect the filing of any notice of appeal. Thus, the

State concludes, Streeter’s appeal should be dismissed.

        Our motions panel considered this issue and concluded that Streeter had timely

filed his notice of appeal. In particular, on April 23, 2012, we ordered Streeter to show

cause as to why his appeal should not be dismissed in light of the apparently absent

notice of appeal.       Streeter, an inmate at the Pendleton Correctional Facility, timely

responded and attached several exhibits. Specifically, Streeter attached a copy of the

notice of appeal, which, while file stamped on December 29, 2011, showed that he had

signed and dated the notice on October 20, 2011. Streeter also attached his request for

remittance of funds from the Pendleton Correctional Facility to pay for the postage to

mail the notice, which was dated October 21, 2011. And Streeter attached a statement

from Alberta Potter, who mailed his notice from the Pendleton Correctional Facility.

Potter stated that “[t]his piece of legal mail . . . was mailed on 10-25-11.” Appellant’s

Response to the Court’s Order to Show Cause (May 14, 2012). Streeter then opined that

the trial court clerk erroneously file stamped his notice of appeal for December rather

than October.

        1
          The version of Indiana Appellate Rule 9 in effect at the time Streeter’s notice of appeal was due
required the notice of appeal to be filed with the clerk of the trial court. See Ind. Appellate Rule 9(A)(1)
(2011).
                                                     3
       While this court may reconsider a ruling of our motions panel, in general “we

decline to do so in the absence of clear authority establishing that it erred as a matter of

law.” Oxford Fin. Group, Ltd. v. Evans, 795 N.E.2d 1135, 1141 (Ind. Ct. App. 2003).

Further, “[w]here the record reasonably permits, we prefer to dispose of appeals on their

merits.” Swain v. Swain, 565 N.E.2d 1134, 1135 (Ind. Ct. App. 1991). The record on

this issue is not as clear as we prefer, but Streeter has presented evidence that reasonably

suggests he timely filed his notice of appeal. Accordingly, we will not reconsider the

conclusion of our motions panel.

                                  Issue Two: Guilty Plea

       On appeal, Streeter first asserts that his guilty plea to child molesting, as a Class A

felony, was not made knowingly, voluntarily, or intelligently. As Streeter stated in his

petition for post-conviction relief, he raises this issue “as [a] fundamental error issue.”

Appellant’s App. at 19; see Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind. 1996)

(holding that a defendant can challenge the validity of his guilty plea only through a

petition for post-conviction relief).

       As we have explained:

       [The petitioner for post-conviction relief bears] the burden of establishing
       the grounds for post-conviction relief by a preponderance of the evidence.
       Post-conviction procedures do not afford a petitioner with a super-appeal,
       and not all issues are available. Rather, subsequent collateral challenges to
       convictions must be based on grounds enumerated in the post-conviction
       rules. If an issue was known and available, but not raised on direct appeal,
       it is waived. If it was raised on appeal, but decided adversely, it is res
       judicata.

              In reviewing the judgment of a post-conviction court, appellate
       courts consider only the evidence and reasonable inferences supporting the
       post-conviction court’s judgment. The post-conviction court is the sole
                                              4
       judge of the evidence and the credibility of the witnesses. Because he is
       now appealing from a negative judgment, to the extent his appeal turns on
       factual issues[, the petitioner] must convince this court that the evidence as
       a whole leads unerringly and unmistakably to a decision opposite that
       reached by the post-conviction court. We will disturb the decision only if
       the evidence is without conflict and leads only to a conclusion contrary to
       the result of the post-conviction court.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008) (citations omitted), trans.

denied. “Issues not raised in a petition for post-conviction relief may not be raised for the

first time on appeal.” Emerson v. State, 812 N.E.2d 1090, 1098-99 (Ind. Ct. App. 2004).

       In his amended petition for post-conviction relief, Streeter expressly limited his

argument to his belief that “the [S]tate was required to prove penetration” in order for

him to have committed child molesting, as a Class A felony. Appellant’s App. at 19

(emphasis original). The post-conviction court rightly rejected this assertion, stating that

the State had charged Streeter, and Streeter had acknowledged in establishing the factual

basis for his plea, with performing deviate sexual conduct on his victim by placing his

mouth on her vagina. See Ind. Code §§ 35-42-4-3(a)(1) (defining child molestation, as a

Class A felony), 35-31.5-2-94 (defining “[d]eviate sexual conduct” as “an act involving:

(1) the sex organ of one (1) person and the mouth or anus of another person . . . .”).

       On appeal, Streeter shifts course and asserts that he did not commit deviate sexual

conduct on his victim because he merely “touched” the child’s vagina with his mouth and

that “what is essentially a kiss [is not] a touching offense or act so egregious” as to be

deviate sexual conduct. Appellant’s Br. at 6. We agree with the State that Streeter’s

argument on appeal is a new argument that was not properly preserved by first raising it




                                             5
to the post-conviction court. See Emerson, 812 N.E.2d at 1098-99. As such, it is waived.

To be sure, however, Streeter’s argument is not supported by the law or the record.2

                           Issue Two: Effective Assistance of Counsel

        Streeter next contends that he was denied the effective assistance of trial counsel.

A claim of ineffective assistance of counsel must satisfy two components. Strickland v.

Washington, 466 U.S. 668 (1984). First, 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. Id. at 687-88. Second, the defendant must show prejudice: 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. at

694.

        Streeter’s assertion that he was denied the effective assistance of trial counsel is

premised on his theory that his contact with his victim could not have been classified as

deviate sexual conduct. Streeter further asserts that his trial counsel did not perform

effectively when he failed to have certain documents admitted as evidence. Streeter did

not preserve either of these arguments for our review.

        As with Issue Two, in his amended petition for post-conviction relief Streeter

alleged he was denied the effective assistance of counsel only because his counsel

“fail[ed] to recognize that[,] in order for defendant to plea[d] guilty to [C]lass A child


        2
            It is not clear the extent to which, if any, Streeter sought to challenge his ability to understand
the trial proceedings in either his petition for post-conviction relief or this appeal. To the extent Streeter
intended to argue those issues, his arguments are not supported by cogent reasoning and are, therefore,
waived. See Ind. Appellate Rule 46(A)(8)(a).
                                                      6
molesting, there ha[d] to be evidence of penetration.” Appellant’s App. at 21 (emphasis

original). Streeter’s two arguments on appeal were not raised in his amended petition for

post-conviction relief. Again, an issue not raised in a petition for post-conviction relief

may not be raised for the first time on appeal. Emerson, 812 N.E.2d at 1098-99. Thus,

Streeter’s arguments are waived.

                                        Issue Four: Sentencing

        Finally, Streeter argues that the trial court abused its discretion when it sentenced

him to an enhanced sentence. As with Streeter’s other arguments, this issue was not

raised in his amended petition for post-conviction relief. Hence, he may not raise it on

appeal in the first instance.3 Id.

                                                Conclusion

        In sum, we hold that the State has not shown that our motions panel erred as a

matter of law when it determined that Streeter had timely filed his notice of appeal.

However, none of Streeter’s arguments on the merits were properly raised in his amended

petition for post-conviction relief. As such, he has failed to preserve his arguments for

appellate review, and we affirm the post-conviction court’s denial of Streeter’s petition

for relief.

        Affirmed.

BAILEY, J., and BARNES, J., concur.




        3
            We need not consider whether this issue was available for Streeter to raise on direct appeal.
                                                       7
