MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Dec 14 2017, 10:04 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


APPELLANT, PRO SE                                        ATTORNEYS FOR APPELLEE
James McDuffy                                            Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

James McDuffy,                                           December 14, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A05-1612-PC-2834
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Respondent.                                     Judge
                                                         The Honorable Jeffrey L. Marchal,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G06-0012-PC-222257



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017       Page 1 of 23
[1]   James McDuffy, pro se, appeals the denial of his petition for post-conviction

      relief. He raises several issues which we revise and restate as:


              I.       Whether the post-conviction court abused its discretion in
                       denying his requests to subpoena an attorney, obtain
                       certain documents, and transfer to the elected judge;

              II.      Whether he established that he had been deprived of the
                       effective assistance of counsel; and

              III.     Whether the post-conviction court was biased against him.

      We affirm.


                                        Facts and Procedural History

[2]   In December 2000, the State charged McDuffy with burglary under Count I and

      theft under Count II after he was waived into adult court, and Attorney Marla

      Thomas was appointed to represent him. On January 4, 2001, the court held a

      hearing on bond reduction at which McDuffy appeared in person and by

      Attorney Thomas. On February 6, 2001, the court held a pre-trial conference at

      which McDuffy appeared in person and by counsel Attorney David Wyser for

      Attorney Thomas, McDuffy rejected the State’s offer, there was a joint

      continuance for further discovery, and other matters were scheduled.1 Attorney

      Thomas appeared on behalf of McDuffy for all subsequent hearings including




      1
       The post-conviction court found that Attorney Wyser’s involvement in this case was limited to his
      appearance on February 6, 2001, as a substitute for Attorney Thomas. The State’s offer was that McDuffy
      would plead guilty to burglary as a class B felony, the State would dismiss the count for theft, and there
      would be a cap on the executed portion of McDuffy’s sentence of ten years.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017         Page 2 of 23
      the guilty plea and sentencing hearings. McDuffy ultimately pled guilty to theft

      as a class D felony under Count II, and the court dismissed the charge under

      Count I and sentenced McDuffy to 545 days with 82 days executed for time

      served and 463 days suspended, and placed him on probation for 365 days.

      The order of probation required McDuffy to complete thirty hours of

      community service work, pay total court ordered fees of $325, and obtain his

      GED through the MLK Multi-Service Center.2


[3]   On August 27, 2001, the probation department filed a notice of violation of

      probation alleging that McDuffy had been arrested and charged with a new

      offense, battery, under another cause number, and also had failed to make a

      good faith effort toward payment of his financial obligation.3 An entry in the

      chronological case summary (“CCS”) dated September 13, 2001, states that

      McDuffy was audibly called three times and the clerk was ordered to issue a re-

      arrest warrant. A January 24, 2002 CCS entry states that McDuffy was in

      custody, and a January 31, 2002 entry states that the court appointed public

      defender Jason Reyome. A February 14, 2002 entry states that the court held a

      probation violation hearing at which McDuffy appeared in person and by

      counsel Attorney Reyome and that the violation was taken under advisement

      pending disposition of the new charge and written notification by the probation




      2
       The chronological case summary also indicates that the trial court “may consider AMS if defendant
      completes probation.” Appellant’s Appendix Volume 2 at 5; Respondent’s Exhibit A at 4.
      3
       The notice also stated, under additional information, that on May 11, 2001, McDuffy had signed a pay
      agreement that indicated he would pay fifty-five dollars per month to the probation department.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017      Page 3 of 23
      department. On February 21, 2002, the probation department filed an amended

      notice of probation violation alleging that McDuffy had been arrested and

      charged with the new offense of battery, had failed to make a good faith effort

      toward payment of his financial obligation, had failed to complete the thirty

      hours of community service work, and had failed to continue the GED classes

      at the MLK Multi-Service Center.4 CCS entries on April 9, 2002, indicate that

      the new charges were disposed and that the court scheduled a hearing for April

      11, 2002, to address the other allegations.


[4]   On April 11, 2002, the court held a probation hearing at which McDuffy

      appeared in person and by counsel Attorney Reyome, the State appeared by

      deputy prosecutor Attorney Wyser, and Wiggins was present for the probation

      department. The parties reached an agreement “for 30 actual additional days,”




      4
          The amended notice also stated, under “Additional Information,” the following:

                 The client reported for a scheduled probation office appointment on 8/14/01 and was
                 rescheduled to return on 9/11/01 at 4:30pm. The office was closed early due to the
                 terrorist attacks. The client did not contact the probation office again until 11/16/01. He
                 called this officer wanting to turn himself in and stated “I would have turned myself in
                 earlier, but due to all of the terrorism going on I was afraid to be down there.” The client
                 failed to turn himself in on 11/17/01 and this officer had no further contact with him
                 until he called again on 1/2/02 complaining that his face was now “being shown on TV
                 and on the wall at the liquor store.” The client was ordered to complete 30 hours of
                 Community Service Work. He has failed to provide any verification of completing the
                 hours . . . . The client was Court ordered to complete the GED program at the MLK
                 Multi-Service Center. On 8/14/01, the client informed Officer Huber that he wanted to
                 postpone the GED and return to high school. The client failed to provide verification of
                 attending GED classes at the MLK Center or returning to high school. On 6/12/01, the
                 client signed a payment plan agreeing to make monthly payments in the amount of $55
                 until his Court debt was paid in full. At this time, the client has made one payment in the
                 amount of $30. The remaining balance is $575.00.

      Appellant’s Appendix Volume 2 at 16-17.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017             Page 4 of 23
      and the court entered an order that McDuffy serve sixty days. Petitioner’s

      Exhibit 4 at 3.


[5]   On August 8, 2013, McDuffy filed a petition for post-conviction relief alleging

      his public defender acted as both defense attorney and prosecutor and he

      received ineffective assistance during his probation violation hearing. On

      September 15, 2015, McDuffy filed a motion to compel the prosecutor to

      produce transcripts of the probation violation hearing and all documents held

      by the juvenile court and probation office, and the court denied the motion as

      not relevant and probative of the issues raised. McDuffy filed several requests

      that Attorney Wyser be subpoenaed for the evidentiary hearing, and the post-

      conviction court denied the requests and found that McDuffy asked the court to

      subpoena Attorney Wyser at an address in the State of Nevada, and that

      Attorney Wyser’s appearance at the evidentiary hearing was not necessary as

      the record of proceedings, including the CCS, would be admissible evidence.

      On March 3, 2016, McDuffy filed an amended petition for post-conviction

      relief alleging ineffective assistance of counsel in his juvenile waiver proceeding

      and his probation violation hearing, prosecutorial misconduct at his probation

      violation hearing, and abuse of discretion at his probation violation hearing.

      That same day, McDuffy also filed a request that the case be transferred to the

      elected judge, which the court denied as untimely.


[6]   On July 14, 2016, the court held an evidentiary hearing on McDuffy’s petition

      at which Attorney Reyome and McDuffy testified. The post-conviction court

      entered findings of fact and conclusions of law denying McDuffy’s petition as to

      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 5 of 23
      each of his claims. In finding that McDuffy is not entitled to relief on his claim

      of ineffective assistance of counsel at the probation hearing, the court found in

      part that McDuffy admitted that he had violated conditions of his probation

      and also agreed to a recommended sentence which the court imposed, that the

      record indicates the trial court followed proper procedure in revoking his

      probation and did not violate his procedural due process rights, and that the

      trial court properly revoked McDuffy’s probation.


                                                  Discussion

[7]   Before discussing McDuffy’s allegations of error, we note the general standard

      under which we review a post-conviction court’s denial of a petition for post-

      conviction relief. The petitioner in a post-conviction proceeding bears the

      burden of establishing grounds for relief by a preponderance of the evidence.

      Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5).

      When appealing from the denial of post-conviction relief, the petitioner stands

      in the position of one appealing from a negative judgment. 810 N.E.2d at 679.

      On review, we will not reverse the judgment unless the evidence as a whole

      unerringly and unmistakably leads to a conclusion opposite that reached by the

      post-conviction court. Id. Further, the post-conviction court in this case

      entered findings of fact and conclusions thereon in accordance with Indiana

      Post-Conviction Rule 1(6). Id. “A post-conviction court’s 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.

      In this review, we accept findings of fact unless clearly erroneous, but we

      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 6 of 23
       accord no deference to conclusions of law. Id. The post-conviction court is the

       sole judge of the weight of the evidence and the credibility of witnesses. Id.


[8]    We further observe that pro se litigants are held to the same standard as trained

       counsel and are required to follow procedural rules. Evans v. State, 809 N.E.2d

       338, 344 (Ind. Ct. App. 2004), trans. denied. Also, to the extent McDuffy raises

       arguments on appeal which he did not allege in his petition for post-conviction

       relief, those arguments are waived. See Allen v. State, 749 N.E.2d 1158, 1171

       (Ind. 2001) (“Issues not raised in the petition for post-conviction relief may not

       be raised for the first time on post-conviction appeal.”), reh’g denied, cert. denied,

       535 U.S. 1060, 122 S. Ct. 1925 (2002).


                                                         I.


[9]    The first issue is whether the post-conviction court abused its discretion in

       denying McDuffy’s requests to obtain certain records, subpoena Attorney

       Wyser, and transfer the case to the elected judge. The management of

       discovery is within the sound discretion of the post-conviction court, and we

       will not reverse a court’s decision on discovery absent an abuse of discretion.

       See Roche v. State, 690 N.E.2d 1115, 1133 (Ind. 1997).


       A.      Request for Documents


[10]   McDuffy claims the post-conviction court abused its discretion in denying his

       motion to compel the prosecutor to produce documents and argues he could

       not establish that he was scheduled for a probation hearing on the day of the


       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 7 of 23
       September 11, 2011 terrorist attacks which was cancelled and never rescheduled

       and that the amended notice of probation violation was never given to him.

       The State argues that McDuffy fails to show he sought anything more than the

       opportunity to generally rifle through files in hopes of discovering a claim.


[11]   The appellant’s appendix contains only the first page of McDuffy’s motion to

       compel, and that page does not specify the documents or information sought

       from the prosecutor or probation office.5 The court’s note indicates that it

       denied the request for documents as not relevant or probative of the issues

       raised. The copy of the February 21, 2002 amended notice of probation

       included in the appellant’s appendix is file-stamped and does not contain return

       of service information indicating it was served upon McDuffy and states under

       additional information that the probation office was closed early on September

       11, 2001, and McDuffy did not contact the probation office again until

       November 16, 2001. While the amended notice does not contain return of

       service information, we observe that McDuffy does not argue that he did not

       receive the August 27, 2001 notice of probation violation or that the

       information in the amended notice that he contacted probation in November

       2001 but failed to turn himself in and failed to provide verification of attending

       GED classes or returning to high school was incorrect. We also observe that




       5
         The first page states in part that McDuffy moves for an order “requiring counsel to produce attorney-client
       file” and that McDuffy “will require access to the revocation hearing transcripts and any available audio in
       raising all grounds known and available to him.” Appellant’s Appendix Volume 2 at 31. The transcript of
       the probation revocation hearing was admitted as Petitioner’s exhibit 4 at the evidentiary hearing.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017          Page 8 of 23
       McDuffy was present with defense counsel at the February 14, 2002 probation

       hearing at which the court took the matter under advisement pending

       disposition of the new charges; that April 9, 2002 CCS entries state that the new

       charges had been disposed and that the court scheduled the April 11, 2002

       hearing to address the other allegations; and that the April 11, 2002 probation

       hearing transcript establishes that McDuffy was present and represented by

       counsel and that the probation department referenced an agreement of the

       parties related to “allegations . . . two through five” and that, after McDuffy

       stated that he had enrolled in school and admitted to the other allegations, the

       court found that he had violated allegations “two, three, and four.” Petitioner’s

       Exhibit 4 at 2, 5.


[12]   Based upon the record, McDuffy has not shown that additional probation

       documents would establish that he was not given the amended allegations or

       notice of a hearing, and we cannot say that the post-conviction court abused its

       discretion in denying his motion to compel with respect to his request for

       documents.


       B.      Request for Subpoena of Witness


[13]   If a pro se petitioner requests issuance of subpoenas for witnesses at an

       evidentiary hearing, “the petitioner shall specifically state by affidavit the

       reason the witness’ testimony is required and the substance of the witness’

       expected testimony.” Ind. Post-Conviction Rule 1(9). If the court finds the

       witness’ testimony would be relevant and probative, the court shall order that


       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 9 of 23
       the subpoena be issued. Id. The post-conviction court has the discretion to

       determine whether to grant or deny a petitioner’s request for a subpoena.

       Pannell v. State, 36 N.E.3d 477, 486 (Ind. Ct. App. 2015), trans. denied. We will

       find that a court has abused this discretion if its decision is against the logic and

       effect of the facts and circumstances before it. Id.


[14]   In requesting the issuance of a subpoena, McDuffy asserted that Attorney

       Wyser’s testimony was required for the reason that he acted as both public

       defender and prosecutor. However, McDuffy did not specifically state the

       substance of Attorney Wyser’s expected testimony. Further, the post-

       conviction court noted that it was asked to issue a subpoena to Attorney Wyser

       at an address in the State of Nevada and that the attorney’s appearance at the

       evidentiary hearing was not necessary as the record of the proceedings,

       including the CCS, would be admissible evidence as to the issue.6


[15]   The record of the proceedings reveals that the trial court held a pre-trial

       conference on February 6, 2001, at which McDuffy appeared “in person and by

       counsel Wyser for Thomas,” that the State offered McDuffy an agreement

       pursuant to which he would plead guilty to burglary as a class B felony, the

       State would dismiss the theft count, and there would be a ten-year cap on the

       executed portion of McDuffy’s sentence, and that McDuffy, represented by

       Attorney Wyser, rejected the State’s offer. Appellant’s Appendix at 4;




       6
           The CCS was subsequently admitted at the evidentiary hearing.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 10 of 23
       Respondent’s Exhibit A at 3. The record further reveals that Attorney Thomas

       appeared on behalf of McDuffy for all of the subsequent hearings through the

       guilty plea and sentencing hearings and that McDuffy, represented by Attorney

       Thomas, ultimately pled guilty to theft as a class D felony and was sentenced to

       time served plus a suspended sentence and placed on probation for one year.

       The post-conviction court specifically found that, “[h]aving reviewed the

       evidence, the Court finds that Wyser’s involvement in the case was limited to

       his appearance on February 6, 2001, as a substitute for Thomas.” Appellant’s

       Brief at 40. We also observe that that the transcript of the April 11, 2002

       probation hearing reveals, as set forth more completely below, that Attorney

       Wyser spoke three times regarding McDuffy’s suspended sentence and the

       State’s offer. Petitioner’s Exhibit 4 at 2.


[16]   Based upon the record and under these circumstances, including that McDuffy

       did not specifically state Attorney Wyser’s expected testimony, that the address

       provided for Wyser was in the State of Nevada, and that the CCS and transcript

       of the April 11, 2002 hearing reveal the extent of Attorney Wyser’s

       representation, we cannot say that the post-conviction court abused its

       discretion in denying McDuffy’s request to subpoena Attorney Wyser to be

       present at the evidentiary hearing.


       C.      Request for Transfer


[17]   McDuffy argues that he timely filed his request to transfer the case to the

       elected judge and cites Ind. Code § 33-5.1-2-27. The State responds that the


       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 11 of 23
       applicable statute, Ind. Code § 33-33-49-32, contains a time limit and that

       McDuffy waited two and one-half years after filing his petition and until after

       the magistrate had presided over two hearings and ruled on numerous motions

       before he finally requested transfer of the case to the elected judge.


[18]   At the time McDuffy filed his petition for post-conviction relief in August 2013,

       Ind. Code § 33-33-49-32(c) provided:


               A party to a superior court proceeding that has been assigned to a
               magistrate appointed under this section may request that an
               elected judge of the superior court preside over the proceeding
               instead of the magistrate to whom the proceeding has been
               assigned. A request under this subsection must be in writing and
               must be filed with the court:

                       (1)      in a civil case, not later than:

                                (A)     ten (10) days after the pleadings are closed; or

                                (B)     thirty (30) days after the case is entered on the
                                        chronological case summary, in a case in
                                        which the defendant is not required to
                                        answer; or

                       (2)      in a criminal case, not later than ten (10) days after
                                the omnibus date.

               Upon a timely request made under this subsection by either
               party, the magistrate to whom the proceeding has been assigned
               shall transfer the proceeding back to the superior court judge.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 12 of 23
       (Subsequently amended by Pub. L. No. 173-2015, § 9 (eff. Jul. 1, 2015); Pub. L.

       No. 129-2017, § 2 (eff. July 1, 2017)).7


[19]   The record reveals that McDuffy filed his petition for post-conviction relief on

       August 8, 2013. He filed his request that the case be transferred to the elected

       judge, along with his amended petition, on March 3, 2016. McDuffy filed his

       transfer request two and one-half years after he first filed his petition for post-

       conviction relief. We cannot say the court abused its discretion or erred in

       denying McDuffy’s transfer request.


                                                               II.


[20]   The next issue is whether McDuffy was denied effective assistance of counsel at

       his probation hearing. A claim of ineffective assistance of counsel requires a

       showing that counsel’s performance was deficient and that the petitioner was

       prejudiced by the deficient performance. French v. State, 778 N.E.2d 816, 824

       (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052

       (1984), reh’g denied). A counsel’s performance is deficient if it falls below an

       objective standard of reasonableness based on prevailing professional norms.




       7
           Ind. Code § 33-5.1-2-27, to which McDuffy cites, was repealed in 2003, and prior to its repeal provided:

                  A party to a superior court proceeding that has been assigned to a magistrate appointed
                  under this section may request that an elected judge of the superior court preside over the
                  proceeding instead of the magistrate to whom the proceeding has been assigned. Upon a
                  request made under this subsection by either party, the magistrate to whom the
                  proceeding has been assigned shall transfer the proceeding back to the superior court
                  judge.
       (Repealed by Pub. L. No. 98-2004, § 164 (eff. Jul. 1, 2004)).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017            Page 13 of 23
       Id. “A fair assessment of attorney performance requires that every effort be

       made to eliminate the distorting effects of hindsight, to reconstruct the

       circumstances of counsel’s challenged conduct, and to evaluate the conduct

       from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct.

       at 2065. To meet the appropriate test for prejudice, the petitioner must show

       that there is a reasonable probability that, but for counsel’s unprofessional

       errors, the result of the proceeding would have been different. French, 778

       N.E.2d at 824. A reasonable probability is a probability sufficient to undermine

       confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).

       Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at

       824. Most ineffective assistance of counsel claims can be resolved by a

       prejudice inquiry alone. Id.


[21]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics do

       not necessarily amount to ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 14 of 23
       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998).


[22]   “Because a probation revocation hearing is a civil proceeding, we apply a less

       stringent standard of review in assessing counsel’s performance.” Jordan v.

       State, 60 N.E.3d 1062, 1068 (Ind. Ct. App. 2016) (citation and brackets

       omitted). “If counsel appeared and represented the petitioner in a procedurally

       fair setting which resulted in judgment of the court, it is not necessary to judge

       his performance by rigorous standards.” Id.


[23]   McDuffy argues that Attorney Reyome should have advised him that he could

       not be held and sentenced for failure to pay fines and costs and cites Ind. Code

       § 35-38-2-3. The State argues that Attorney Reyome appeared on behalf of

       McDuffy and represented him in a procedurally fair revocation hearing and that

       McDuffy’s probation was revoked for three separate violations, only one of

       which related to payment of fees.


[24]   At the time of McDuffy’s probation hearing, Ind. Code § 35-38-2-3 provided in

       part that “[p]robation may not be revoked for failure to comply with conditions

       of sentencing that imposes financial obligations on the person unless the person

       recklessly, knowingly, or intentionally fails to pay” and that “[f]ailure to pay




       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 15 of 23
       fines or costs required as a condition of probation may not be the sole basis for

       commitment to the department of correction.”8


[25]   The record reveals that the February 21, 2002 amended notice of probation

       violation alleged:


                (PENDING)           1. On or about 8/19/01, the client was
                arrested and charged with Battery (MA) under Cause #49G02-
                10108-CM-170514. He was OR’d on 8/23/01. A Court Trial is
                set for 3/26/02 at 1:00pm in Court #21.

                (PENDING)         2. The client has failed to make a good faith
                effort toward payment of his financial obligation.

                (NEW)       3. The client failed to report for to [sic] the
                probation department as directed.

                (NEW)     4. The client failed to complete the 30 hours of
                Community Service Work.

                (NEW)     5. The client failed to continue the GED classes at
                the MLK Multi-Service Center.


       Appellant’s Appendix Volume 2 at 16.


[26]   The record further reveals that the following exchange occurred at McDuffy’s

       probation revocation hearing:




       8
        Subsequently amended by Pub. L. No. 98-2004, § 152 (eff. Jul. 1, 2004); Pub. L. No. 13-2005, § 1 (eff. Jul.
       1, 2005); Pub. L. No. 156-2007, § 5 (eff. Jul. 1, 2007); Pub. L. No. 48-2008, § 1 (eff. Jul. 1, 2008); Pub. L. No.
       106-2010, § 11 (eff. Jul. 1, 2010); Pub. L. No. 147-2012, § 10 (eff. Jul. 1, 2012); Pub. L. No. 74-2015, § 21 (eff.
       Jul. 1, 2015).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017             Page 16 of 23
        THE COURT:           This is State versus James McDuffy, who is
        present in person, by counsel Mr. Reyome; the State by Mr.
        Wyser and Ms. Wiggins, and we’re here on the notice of
        probation violation that was filed on February 21. New case was
        dismissed; is that right?

        MS. WIGGINS:             Yes, Judge.

        THE COURT:               Okay. So, we’re withdrawing one.

        MS. WIGGINS:             Yes.

                                             *****

        MR. WYSER:               We have an agreement on the others.

        THE COURT:               Go ahead. What is it?

        MS. WIGGINS: The agreement is 90 days for allegations two
        through, two through five, Judge.

        THE COURT:               With credit?

        MS. WIGGINS: Actually, Judge, I’m going to have to say no,
        because I believe that was a love gift.

        THE COURT:               Kind of like what we just had in the court
        room.

        MR. REYOME: For what it’s worth, Your Honor, that wasn’t
        what was negotiated, so I need a second to confirm with my
        client.

        MS. WIGGINS:             That is true, Judge. That is true.

        THE COURT:               What’s his credit time? He’d be out.

        MR. WYSER:            Judge, he was looking 463 total, so the offer
        of 90 is pretty lenient. That would be do 90, not with credit.

        THE COURT:               So 45 more?

Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 17 of 23
        MR. WYSER:               Correct. It’s either that or we can argue the
        463.

        THE COURT:           Right. Do you understand what the
        prosecutor just said? He said you can either take that or we can
        argue about whether I give you 463 days. And I’m not saying I
        will or I won’t, but that’s what the argument would become.

        THE DEFENDANT:                    Can I consult with my counsel?

        THE COURT:               You sure can. He’s got 79 days credit as you
        consult.

        MR. REYOME: We did a little haggling, Your Honor, and I
        think we’ve reached an agreement that for 30 actual additional
        days.

        THE COURT:               Okay. All right. Raise your hand, sir.

        WHEREUPON, THE DEFENDANT IS SWORN BY THE
        COURT.

        THE COURT:           Do you admit that you failed to make a good
        faith effort towards paying your court ordered debt?

        THE DEFENDANT:                    Hm?

        THE COURT:               Do you admit you failed to pay the money
        you owed?

        THE DEFENDANT:                    I tried.

        THE COURT:       Well, you paid thirty dollars in about seven
        months. You didn’t try real hard, did you?

        THE DEFENDANT:                    I didn’t try to my full ability, then.

        THE COURT:         All right, then. Do you admit that you failed
        to report when you were told to?

        THE DEFENDANT:                    Yes, ma’am.

Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 18 of 23
               THE COURT:        Do you admit that you failed to complete all
               of the community service work I ordered?

               THE DEFENDANT:                    Yes, ma’am.

               THE COURT:       And do you admit that you failed to continue
               your GED at the MLK Multiservice Center?

               THE DEFENDANT:           No, ma’am. I was enrolled in school.
               I was enrolled at Manual High School.

               THE COURT:               Oh. He said he was enrolled at Manual.

               MS. WIGGINS:             Of course I don’t have record of that, Judge.

               THE DEFENDANT:                    My, my probation officer was -

               MR. REYOME: For what it’s worth, Your Honor, we can
               admit that he didn’t complete his community service. I mean,
               that’s not a big issue.

               THE COURT:            We’ll show a violation on two, three, and
               four, not on five. No violation on five. We’ll order the
               defendant to serve 60 days zero credit. He gets credit time. But
               not jail time credit. I want to just give him a 60 day commitment
               on count one. It needs to be to the DOC. It’s not count one. It’s
               count two.


       Petitioner’s Exhibit 4 at 2-5.

[27]   Attorney Reyome reached an agreement on behalf of McDuffy pursuant to

       which McDuffy would serve significantly less than his full previously-

       suspended sentence, and McDuffy admitted to three of the five allegations

       against him. Based upon our standard and under the circumstances, we cannot

       say that the performance of McDuffy’s counsel at the probation hearing was



       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 19 of 23
       deficient or that we are left with a definite and firm conviction that a mistake

       has been made or that reversal is warranted on this basis.


                                                        III.


[28]   The next issue is whether McDuffy has shown the post-conviction court was

       biased against him. We presume that the judge was unbiased and

       unprejudiced. Perry v. State, 904 N.E.2d 302, 307 (Ind. Ct. App. 2009), trans.

       denied. To rebut that presumption, the defendant must establish from the

       judge’s conduct actual bias or prejudice that places the defendant in jeopardy.

       Id. Adverse rulings alone are insufficient to establish bias per se, and bias will

       rarely, if ever, be found on the face of rulings alone because the defendant must

       show an improper or extra-judicial factor or such a high degree of favoritism

       that a fair judgment was impossible. Id. at 308.


[29]   McDuffy argues that the post-conviction judge assumed an adversarial role

       denying him a fair proceeding. The State argues that the fact the post-

       conviction court did not find McDuffy’s testimony credible is not evidence of

       bias. It argues that the court responded in a measured and professional manner

       to a recalcitrant witness who would not provide direct answers to simple factual

       questions.


[30]   The record reveals that, at the evidentiary hearing, the post-conviction court

       heard testimony from Attorney Reyome and McDuffy. After McDuffy

       presented his own testimony, the court directed McDuffy to the page and line of

       the transcript of the probation revocation hearing showing that he had been

       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 20 of 23
placed under oath and then read portions of the transcript to McDuffy. The

court read the portion of the transcript regarding McDuffy’s failure to pay and

his statement “I didn’t try to my full ability then,” and McDuffy replied “I said

I tried.” Transcript at 28. The court read the part of the transcript showing the

revocation court had asked if McDuffy failed to report when told and that he

had answered affirmatively, and McDuffy stated “But I tried.” Id. The court

also read the portion of the transcript showing the revocation court had asked if

McDuffy admitted to failing to complete his community service work and that

he had replied affirmatively, and McDuffy stated “Yes. I did say yes. Because

I was incarcerated.” Id. at 29. The court asked McDuffy if he had admitted to

the violation, and McDuffy replied “I believe that those admissions were not

done intelligently” “[d]ue to the lack of counsel.” Id. The following exchange

then occurred between the court and McDuffy:


        THE COURT:          Okay. You also agree with me in looking at
        Exhibit 4 [the probation hearing transcript], that at no time did
        you object to Mr. Wyser appearing for the State of Indiana at
        that violation hearing, did you?

        MR. MCDUFFY: I believe that’s something that my lawyer
        should have done.

        THE COURT:               But you didn’t say anything to him?

        MR. MCDUFFY: He knew. Why didn’t --

        THE COURT:               You didn’t say anything to him, did you?

        MR. MCDUFFY: So you --

        THE COURT:               Answer my question.

Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 21 of 23
        MR. MCDUFFY: So you object. I object.

        THE COURT:               Did you say anything to your attorney?

        MR. MCDUFFY: Because you are arguing with me and trying
        to make the question, the line of question (indiscernible).

        THE COURT:               Are you refusing to answer my question?

        MR. MCDUFFY: You’re making your question argumentative.
        You acting in the capacity of the prosecutor.

        THE COURT:         I’m asking you a question. Did you tell your
        lawyer about the problem with David Wyser?

        MR. MCDUFFY: I absolutely told my lawyer that David Wyser
        was my public defender.

        THE COURT:               Okay.

        MR. MCDUFFY: I absolutely did.

        THE COURT:          Did you ask him that while Mr. Reyome was
        on the stand here earlier?

        MR. MCDUFFY: No. I didn’t. But I absolutely told him that --
        And I’ve been sworn under oath that that’s the truth.

        THE COURT:               I’ll be honest, I don’t find your testimony
        credible today.

        MR. MCDUFFY: Okay. I’m sorry.

        THE COURT:               I don’t find it credible at all.

        MR. MCDUFFY: I’m sorry that you don’t find my testimony
        credible but I don’t think you ever would have found my
        testimony credible. Prior to this I asked to get you off of this case
        and have it referred back to the Superior Court Judge and that
        motion was denied. So I feel like me and you have a bias stance


Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017   Page 22 of 23
               on this case. And the motion was denied on an erroneous
               pretense.


       Id. at 29-31.


[31]   Based upon the record, we cannot say that the post-conviction court’s

       questioning of McDuffy and its finding that his testimony was not credible

       demonstrates that the judge showed partiality or establishes a degree of

       favoritism such that a fair judgment was impossible, and accordingly we

       conclude that McDuffy has not rebutted the presumption that the post-

       conviction court was unbiased. See Perry, 904 N.E.2d at 307-308 (finding that

       the petitioner offered no evidence that the post-conviction court derived its

       decisions from an improper source or was motivated by the type of hostility

       necessary to establish judicial bias).


                                                   Conclusion

[32]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       McDuffy’s petition for post-conviction relief.


[33]   Affirmed.


       Najam, J., and Kirsch, J., concur.




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