MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any
                                                                            Sep 28 2018, 11:11 am
court except for the purpose of establishing
the defense of res judicata, collateral                                          CLERK
                                                                             Indiana Supreme Court
estoppel, or the law of the case.                                               Court of Appeals
                                                                                  and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Kevin D. Hamlet                                          Curtis T. Hill, Jr.
Greencastle, Indiana                                     Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kevin D. Hamlet,                                         September 28, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-142
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Helen W. Marchal,
Appellee-Respondent.                                     Judge
                                                         The Honorable Stanley E. Kroh,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G15-1703-PC-11760



Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-PC-142 | September 28, 2018                    Page 1 of 8
                                          Case Summary
[1]   On August 4, 2016, Kevin Hamlet pled guilty to Level 6 felony theft and

      subsequently filed a petition for post-conviction relief (“PCR”). Following an

      evidentiary hearing, the post-conviction court denied Hamlet’s petition.

      Hamlet raises a number of arguments on appeal, which we restate as whether

      the post-conviction court (1) correctly denied his PCR petition and (2) properly

      weighed the evidence. We affirm.



                            Facts and Procedural History
[2]   On June 23, 2016, Hamlet was charged with Class A misdemeanor theft after

      he was caught trying to deprive Walmart of the value of certain containers of

      beer and liquor. The charge was enhanced to a Level 6 felony because of a

      prior conviction. Hamlet pled guilty to the enhanced Level 6 felony charge.

      The trial court subsequently accepted Hamlet’s plea, entered judgment of

      conviction for Level 6 felony theft, and sentenced Hamlet to a two-year term,

      all of which was to be executed in community corrections. Hamlet filed a PCR

      petition on November 15, 2016. Following an evidentiary hearing, the post-

      conviction court denied Hamlet’s PCR petition.



                                 Discussion and Decision
[3]   Hamlet contends that the post-conviction court erred by denying his PCR

      petition, arguing that his trial counsel provided ineffective assistance that


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-142 | September 28, 2018   Page 2 of 8
      rendered his guilty plea involuntary. Hamlet also contends that the post-

      conviction court failed to appropriately credit certain evidence.


                                     I. Standard of Review
[4]   “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 relief 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); Colliar v. State, 715 N.E.2d 940, 942 (Ind. Ct. App.

      1999), trans. denied.


[5]   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 the sole judge of the weight of the evidence and


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-142 | September 28, 2018   Page 3 of 8
      the credibility of the witnesses.” Fisher v. State, 810 N.E.2d 674, 679 (Ind.

      2004).


                         II. Denial of Hamlet’s PCR Petition
[6]   Hamlet contends that the trial court erred by denying his PCR petition because

      his trial counsel provided ineffective assistance that rendered his guilty plea

      involuntary. “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). 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. (internal quotation

      omitted). 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.


[7]   Under the second prong, the petitioner must show that the deficient

      performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner’s


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-142 | September 28, 2018   Page 4 of 8
      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).


[8]   “There are two different types of ineffective assistance of counsel claims that

      can be made in regards to guilty pleas: (1) failure to advise the defendant on an

      issue that impairs or overlooks a defense and (2) an incorrect advisement of

      penal consequences.” McCullough v. State, 987 N.E.2d 1173, 1176 (Ind. Ct.

      App. 2013). Where, as here, a petitioner raises a claim relating to penal

      consequences, “a petitioner must establish, by objective facts, circumstances

      that support the conclusion that counsel’s errors in advice as to penal

      consequences were material to the decision to plead.” Segura v. State, 749

      N.E.2d 496, 507 (Ind. 2001). “Merely alleging that the petitioner would not

      have pleaded is insufficient.” Id. “Rather, specific facts, in addition to the

      petitioner’s conclusory allegation, must establish an objective reasonable

      probability that competent representation would have caused the petitioner not

      to enter a plea.” Id.


[9]   Hamlet argues that his trial counsel provided deficient performance and makes

      the conclusory allegation that he would not have pled guilty but for this

      deficient performance. Review of the record, however, does not support

      Hamlet’s claim that his trial counsel provided deficient performance. Hamlet

      asserts that he only pled guilty after his trial counsel informed him that the

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-142 | September 28, 2018   Page 5 of 8
       deputy prosecutor threatened to seek a habitual-offender enhancement if he

       requested discovery. Trial counsel, however, testified that the deputy

       prosecutor never threatened to file a habitual enhancement and both she and

       the deputy prosecutor knew that Hamlet was not habitual-eligible because he

       was facing an enhanced charge. Trial counsel explained that language in the

       plea agreement referring to the State’s decision not to file a habitual

       enhancement was “surplusage” and was inadvertently included. PCR Tr. p. 27.

       Trial counsel did not remember the trial court making any comment about a

       habitual enhancement beyond reading the term of the plea agreement that the

       State would not seek a habitual enhancement.1


[10]   Trial counsel further indicated that while she had conversations with Hamlet

       about potential outcomes, she never discussed a potential habitual

       enhancement, explaining that “[i]t wasn’t appropriate because he wasn’t

       habitual[-]eligible in this case.” PCR Tr. p. 29. Trial counsel remembered

       Hamlet as wishing to resolve the matter quickly because he was facing

       additional criminal penalties in an unrelated matter that was pending in a

       different criminal court. Hamlet never asked trial counsel to conduct discovery

       or indicated that he wished to proceed to trial. Pursuant to what she deemed to

       be Hamlet’s wishes, trial counsel worked to obtain the best plea deal possible




       1
         Hamlet also argues that the deputy prosecutor, his trial counsel, and the trial court made comments during
       the guilty plea hearing that renewed and repeated the alleged threat. Hamlet acknowledged during the
       evidentiary hearing that the transcript of the guilty plea hearing is not consistent with his recollection of the
       alleged comments but claims that he believes the transcript is inaccurate.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-142 | September 28, 2018                     Page 6 of 8
       for Hamlet. Trial counsel testified during the post-conviction evidentiary

       hearing that she did not believe that the habitual-offender issue was a factor in

       Hamlet’s decision to plead guilty.


[11]   In denying Hamlet’s PCR petition, the post-conviction court explicitly stated

       that it found trial counsel’s testimony more credible than that of the Petitioner.

       We will not disturb the post-conviction court’s credibility determinations on

       appeal. See Fisher, 810 N.E.2d at 679 (providing that the post-conviction court

       is the sole judge of the credibility of the witnesses). The record indicates that

       trial counsel appropriately discussed the potential penalties Hamlet faced and

       worked to resolve the case in accordance with Hamlet’s wishes. Thus, like the

       post-conviction court, we conclude that Hamlet failed to prove that his trial

       counsel rendered deficient performance. Hamlet, therefore has failed to prove

       that he received ineffective assistance of trial counsel. See Grinstead, 845 N.E.2d

       at 1031 (providing that a claim of ineffective assistance may be disposed of on

       either the deficient performance or prejudice prong).


                                        II. Weight of Evidence
[12]   Hamlet also contends that the post-conviction court failed to properly weigh

       evidence relating to the audio recording of the guilty plea hearing. 2 On August

       17, 2017, the post-conviction court made an entry on the chronological case




       2
         To the extent that Hamlet challenges the trial court’s failure to review recordings of his phone
       conversations with trial counsel prior to the guilty plea hearing, Hamlet failed to provide any such recordings
       to the post-conviction court.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-142 | September 28, 2018                   Page 7 of 8
       summary indicating that the court “has reviewed the audio of the guilty plea

       hearing and will consider same when reviewing the parties[’] proposed findings

       of fact and conclusions of law.” Appellant’s App. Vol. II, p. 24. Hamlet claims

       “[l]ogic and reason determine that, if the Court heard anything other than what

       Hamlet stated from the beginning, especially alleging a manifest injustice, the

       Court would have clearly stated it then during its entry when there was no need

       to consider anything else.” Appellant’s Br. p. 27 (emphasis omitted). However,

       we believe the more reasonable inference is that given the post-conviction

       court’s conclusion that Hamlet was not entitled to relief, the audio recording of

       the guilty plea hearing did not support Hamlet’s recollection of the statements

       allegedly made during the hearing. Again, the post-conviction court is the sole

       judge of the weight of the evidence. Fisher, 810 N.E.2d at 679. Hamlet’s claim

       effectively amounts to a request that this court reweigh the evidence, which we

       will not do. See Wilkerson v. State, 728 N.E.2d 239, 243 (Ind. Ct. App. 2000)

       (providing that we will neither reweigh the evidence nor judge the credibility of

       the witnesses on appeal).


[13]   The judgment of the post-conviction court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-142 | September 28, 2018   Page 8 of 8
