Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not 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.




  APPELLANT PRO SE:                                  ATTORNEYS FOR APPELLEE:

  JOSE CARLOS ARCE                                   GREGORY F. ZOELLER
  Plainfield, Indiana                                Attorney General of Indiana

                                                     ELLEN H. MEILAENDER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana
                                                                                   FILED
                                                                               Nov 30 2012, 9:26 am

                                 IN THE
                                                                                        CLERK
                       COURT OF APPEALS OF INDIANA                                    of the supreme court,
                                                                                      court of appeals and
                                                                                             tax court




  JOSE CARLOS ARCE,                                  )
                                                     )
          Appellant,                                 )
                                                     )
              vs.                                    )        No. 88A05-1206-PC-324
                                                     )
  STATE OF INDIANA,                                  )
                                                     )
          Appellee.                                  )


                      APPEAL FROM THE WASHINGTON SUPERIOR COURT
                           The Honorable Larry R. Blanton, Special Judge
                                 Cause No. 88D01-1112-PC-897


                                          November 30, 2012

                              OPINION – NOT FOR PUBLICATION

  MATHIAS, Judge

  	  
       Pursuant to a plea agreement, Jose Carlos Arce (“Arce”) pleaded guilty to Class B

felony robbery while armed with a deadly weapon. On December 5, 2011, Arce filed a

petition for post-conviction relief, but the trial court, without a hearing, summarily denied

his petition. Arce appeals the denial of his petition for post-conviction relief and raises

the following issue: whether the post-conviction court erred by failing to hold a hearing

on his petition.

       We affirm in part, reverse in part, and remand for proceedings consistent with this

opinion.

                              Facts and Procedural History

The facts of this case, as reported in Arce’s direct appeal are as follows:

       On May 21, 2009, Arce entered the National City Bank in Campbellsburg,
       Indiana armed with a CO2–powered BB gun. Tellers Melissa Badger and
       Gina Singleton were working at the bank. Arce ordered Singleton to lie
       down on the floor and ordered Badger to give him money from both her
       cash drawer and Singleton’s cash drawer. Once Badger gave him the
       money, he ordered her to lie down on the floor as well. Arce then fled the
       bank and was apprehended by police approximately one hour later. The
       police found him in the vehicle that was reported leaving the bank, and in
       possession of the BB gun, a disguise, and the bank’s money. Arce
       confessed his crime to the police at that time.

       The State charged Arce with robbery while armed with a deadly weapon, a
       Class B felony. Arce pleaded guilty pursuant to a plea agreement that
       capped his sentence at twelve years.

Arce v. State, No. 88A01–1003–CR–155, 939 N.E.2d 131 (Ind. Ct. App. Dec. 15, 2010),

trans. denied.

       On November 30, 2009, Arce pleaded guilty pursuant to a plea agreement to Class

B felony robbery while armed with a deadly weapon. At the sentencing hearing, he was


                                              2
	  
represented by a court-appointed attorney and was sentenced to twelve years. Following

the trial court’s denial of his pro se motion to reconsider, he directly appealed his

sentence to this Court. On direct appeal, Arce raised the following issues: (1) whether his

right to appeal had been waived; (2) whether the trial court abused its discretion in

sentencing by overlooking mitigating factors, by finding invalid aggravating factors, by

failing to explain why each circumstance was aggravating or mitigating, and by denying

Arce his statutory right to file a written memorandum; and (3) whether the sentence

imposed was inappropriate. This court, after concluding that the trial court’s error in

finding two aggravating circumstances was harmless, affirmed his sentence.

       On December 5, 2011, Arce filed a pro-se petition for post-conviction relief

raising four claims: (1) whether the court violated due process and fundamentally erred

by failing to consider nine mitigating factors; (2) whether the court violated due process

and fundamentally erred by relying on four invalid aggravating factors; (3) whether the

court violated due process and fundamentally erred by failing to explain why the

aggravating factor of premeditation was selected; and (4) whether Arce’s attorney

provided ineffective assistance of counsel during his guilty plea and sentencing hearings.

The State moved for summary disposition under Indiana Post-Conviction Rule 1, section

4(f) and section 4(g). Without a hearing, the post-conviction court granted the State’s

motion for summary disposition. Arce now appeals.

                                Discussion and Decision

       Arce appeals from the denial of his post-conviction relief and argues that the post-

conviction court erred by failing to hold an evidentiary hearing to consider the material

                                            3
	  
issues raised in his petition. Post-conviction proceedings are not “super appeals[,]”

McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002), but rather are “a limited opportunity

to raise issues that were unavailable or unknown at trial and on direct appeal.” Allen v.

State, 791 N.E.2d 748, 752 (Ind. Ct. App. 2003). “The petitioner has the burden of

establishing his grounds for relief by a preponderance of the evidence.” P.–C.R. 1 § 5.

       A post-conviction court can dispose of claims without a hearing under Indiana

Post-Conviction Rule 1, section 4(f) and section 4(g). Here, the trial court did not specify

whether it was granting the State’s motion for summary disposition under subsection (f)

or subsection (g), and the “disposal of a petition under each of these two subsections

leads to a different standard of review on appeal.” Allen, 791 N.E.2d at 752. Under

section 4(f), “[i]f the pleadings conclusively show that petitioner is entitled to no relief,

the court may deny the petition without further proceedings.” If, however, the pleadings

“raise an issue of possible merit, then the petition should not be disposed of under section

4(f).” Id. at 752-53. “This is true even [if] the petitioner has only a remote chance of

establishing his claim.” Clayton v. State, 673 N.E.2d 783, 785 (Ind. Ct. App. 1996).

       Whereas, section 4(g) provides that a moving party is entitled to judgment as a

matter of law if “it appears from the pleadings, depositions, answers to interrogatories,

admissions, stipulations of fact, and any affidavits submitted, that there is no genuine

issue of material fact” but “[i]f an issue of material fact is raised, then the court shall hold

an evidentiary hearing as soon as reasonably possible.” The post-conviction court should

not grant summary disposition under section 4(g) “unless ‘there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law.’” Allen, 791

                                               4
	  
N.E.2d at 753 (quoting Poling v. State, 740 N.E.2d 872, 877–878 (Ind. Ct. App. 2000),	  

disapproved on other grounds by Graves v. State, 823 N.E.2d 1193 (Ind. 2005)). On

review, we resolve all “doubts about facts, and the inferences to be drawn from the facts,

in the non-movant’s favor.” Id. at 753. However, the appellant does still have “the

burden of persuading us that the post-conviction court erred.” Id.

       Even if a post-conviction court denies a petition without a hearing, it still must

“make specific findings of fact, and conclusions of law on all issues presented[.]”   P.–

C.R. 1 § 6. We do not give deference to a post-conviction court’s findings of law, but

we do defer to the factual findings of the post-conviction court “unless they are clearly

erroneous.” Stevens, 770 N.E.2d at 746. Furthermore, we do not reverse the post-

conviction court’s negative judgment “unless the petitioner demonstrates that the

evidence ‘as a whole, leads unerringly and unmistakably to a decision opposite that

reached by the post-conviction court.’” Allen, 791 N.E.2d at 752 (quoting Curry v. State,

674 N.E.2d 160, 161 (Ind. 1996)).

       In his petition for post-conviction relief, Arce asserted multiple grounds on which

he believed his counsel was ineffective and asserted how he believed these grounds

resulted in prejudice to him, including: the attorney advised Arce not to ask for a change

of judge after the sentencing judge attended a social gathering with one of the victims;

the attorney failed to object to hearsay evidence, which resulted in erroneous findings by

the trial court; the attorney failed to state on record Arce’s desire to file a written

memorandum in support of a reduced sentence, which resulted in Arce being unable to

file a written statement that may have influenced the sentencing court’s decision; the

                                            5
	  
attorney failed to question the victims regarding the lasting trauma; the attorney failed to

vigorously represent him during the sentencing hearing, which resulted in the court

erroneously    finding    aggravating     circumstances    and    overlooking     mitigating

circumstances; and the attorney failed to conduct adequate pretrial investigation and

preparation for the sentencing hearing.

        Claims of ineffective assistance of trial counsel are generally reviewed under a

two-part test. Strickland v. Washington, 466 U.S. 668, 687 (1984); Grinstead v. State,

845 N.E.2d 1027, 1031 (Ind. 2006). A defendant must demonstrate that his “counsel’s

performance was deficient” and “that the deficient performance” resulted in prejudice.

Id. at 687. A claim can be disposed of under either prong. Grinstead, 845 N.E.2d at

1031.

        “[O]ur Supreme Court has determined that an evidentiary hearing is required

when issues of fact are raised even in the unlikely event that the petitioner will produce

evidence sufficient to establish his claim.” Truitt v. State, 853 N.E.2d 504, 507 (Ind. Ct.

App. 2006) (citing Bailey v. State, 447 N.E.2d 1088, 1090 (Ind. 1983)). Claims of

ineffective assistance of counsel generally raise issues of material fact. See e.g., Kelly v.

State, 952 N.E.2d 297, 300 (Ind. Ct. App. 2011) (“Resolution of the issue [of ineffective

assistance of counsel] revolves around the particular facts of each case.”).

        Our inquiry does not focus on whether Arce’s counsel “was in fact effective or

adequate; rather, the question is whether there existed a genuine issue of material fact as

to the effectiveness or adequacy” of his counsel. Evolga v. State, 722 N.E.2d 370, 373

(Ind. Ct. App. 2000). In Evolga, this court held that the effectiveness of petitioner’s

                                             6
	  
counsel was a question of fact that precluded summary disposition where the petitioner

asserted multiple allegations that counsel was ineffective and the State responded only

with an unverified general denial. Id. at 374.

                                                     Here, the State issued only a general denial of the facts, and Arce pleaded multiple

grounds of ineffective assistance of counsel and set forth how his counsel’s errors

prejudiced him. Therefore, we conclude that he raised genuine issues of material fact in

regard to both prongs of Strickland’s two-part test. The pleadings do not conclusively

show that Arce is not entitled to relief, and there is a genuine issue of material fact

regarding whether Arce had ineffective assistance of counsel. For these reasons, we hold

that the post-conviction court should conduct a hearing where Arce can present evidence

to support his claim of ineffective assistance of counsel.1

                                                                                                                                                                                                                           Conclusion

                                                     We affirm the summary disposition of the freestanding due process and

fundamental error claims regarding aggravating and mitigating circumstances. 2 We


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
  Since we are reversing and ordering the post-conviction court to have a hearing in regard to ineffective
assistance of counsel, we need not address whether the factual findings or conclusions regarding the
ineffective assistance of counsel claim were erroneous.
2
 	  Arce also argues that the due process and fundamental error claims regarding the aggravating and
mitigating circumstances were not freestanding claims but rather were raised in conjunction with his
claim of ineffective assistance of counsel. However, in his petition for post-conviction relief he asserted
the claims as separate grounds for relief as well as arguing that his court appointed attorney was
ineffective in vigorously representing him due to the failure to present cogent arguments regarding the
aggravating and mitigating circumstances. We agree with the post-conviction court that they were
freestanding claims that could be summarily dismissed. The due process arguments were waived since
they were not raised on direct appeal. See Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001). In
addition, freestanding claims of fundamental error cannot be raised as a claim for post-conviction relief.
See Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002). We do note, however, that arguments regarding
the aggravating and mitigating circumstances may still be considered on remand but only to the extent
that they support Arce’s ineffective assistance of counsel claim.
                                                                                                                                                                                                                            7
	  
remand to the post-conviction court for the limited purpose of affording Arce a hearing

on his claim of ineffective assistance of counsel.

       The judgment of the post-conviction court is affirmed in part, reversed in part, and

remanded for further proceedings consistent with this opinion.

VAIDIK, J., and BARNES, J., concur.




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