MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                   Dec 28 2016, 8:58 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
court except for the purpose of establishing                          Court of Appeals
                                                                        and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Kevin J. Mamon                                           Gregory F. Zoeller
Michigan City, Indiana                                   Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin J. Mamon,                                          December 28, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         30A05-1511-PC-1942
        v.                                               Appeal from the Hancock Circuit
                                                         Court
State of Indiana,                                        The Honorable Richard Culver,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         30C01-1507-PC-1138



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016   Page 1 of 6
[1]   Kevin J. Mamon appeals from the summary denial of his petition for post-

      conviction relief (PCR Petition). Mamon, pro se, asserts that the post-

      conviction court erred in rejecting his claim of sentencing error.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Following a jury trial, Mamon was convicted of battery by bodily waste, a Class

      D felony, and was subsequently sentenced to three years imprisonment to be

      served consecutive to the sentence imposed in a separate cause. On direct

      appeal to this court, Mamon challenged the exclusion of evidence, the

      reasonableness of the trial court’s delay in sentencing, the trial court’s

      jurisdiction in light of his request for removal of his cause to federal court, as

      well as the appropriateness of his sentence. With regard to his sentence, this

      court held that the trial court did not err in sentencing Mamon to three years

      and ordering the sentence to run consecutively to a previously imposed

      sentence. See Mamon v. State, No. 30A05-1309-CR-440, slip op. at 6 (Ind. Ct.

      App. Mar. 31, 2014), trans. denied.


[4]   Mamon filed a PCR Petition on July 29, 2015. In his petition, Mamon asserted

      a claim that he received ineffective assistance of counsel based on counsel’s

      failure to object or argue on appeal that his sentence violated the consecutive

      sentencing statute. Mamon also asserted as free-standing claims of error that

      the trial court failed to adequately articulate its reasons for ordering a

      consecutive sentence and that the trial court was without authority to impose a

      Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016   Page 2 of 6
      consecutive sentence under the facts of this case. The State filed a response on

      September 21, 2015. On October 5, 2015, Mamon filed a request for summary

      judgment with supporting exhibits, asserting that “there are no material facts in

      dispute.” Appellant’s Appendix at 18. Mamon’s exhibits consisted of copies of

      sentencing orders from the instant cause and the cause to which the current

      sentence was to be consecutively served. According to Mamon, his consecutive

      sentences for unrelated crimes amounted to fundamental error.


[5]   The post-conviction court denied Mamon’s request for relief, concluding that

      pursuant to Ind. Code § 35-50-1-2(c), the trial court had discretion to impose a

      consecutive sentence and that imposition of a consecutive sentence was

      supported by Mamon’s “lengthy criminal record, failed attempts at

      rehabilitation and a history of confrontation including fights and arguments

      with cell mates and jail officers.” Appellant’s Appendix at 25. The post-

      conviction court also noted that Mamon had previously challenged his sentence

      on direct appeal and such sentence was affirmed by this court. Mamon now

      appeals. Additional facts will be provided as necessary.


                                          Discussion & Decision


[6]   In a post-conviction proceeding, the petitioner bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Bethea v. State, 983

      N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

      relief, the petitioner stands in the position of one appealing from a negative

      judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In


      Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016   Page 3 of 6
      order to prevail, the petitioner must demonstrate that the evidence as a whole

      leads unerringly and unmistakably to a conclusion opposite the post-conviction

      court’s conclusion. Id. Although we do not defer to a post-conviction court’s

      legal conclusions, we will reverse its findings and judgment only upon a

      showing of clear error, i.e., “that which leaves us with a definite and firm

      conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

      N.E.2d 102, 106 (Ind. 2000)).


[7]   Post-conviction proceedings afford petitioners a limited opportunity to raise

      issues that were unavailable or unknown at trial and on direct appeal. Conner v.

      State, 711 N.E.2d 1238, 1244 (Ind. 1999); see also Ind. Post-Conviction Rule

      1(1)(a). Such proceedings are not “super appeals” through which convicted

      persons can raise issues that they failed to raise at trial or on direct appeal.

      McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002).


[8]   Mamon first argues that the post-conviction court prematurely denied his

      petition for post-conviction relief and did not afford him an opportunity to

      present evidence in support of his claim of ineffective assistance of counsel.

      Mamon’s argument is disingenuous given that he is the party who filed the

      motion for summary judgment and asserted that there were no genuine issues of

      material fact. See Post-Conviction Rule 1(4)(g) (providing that a post-

      conviction court “may grant a motion by either party for summary disposition

      of the petition when it appears . . . that there is no genuine issue of material fact

      and the moving party is entitled to judgment as a matter of law”).



      Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016   Page 4 of 6
[9]    The balance of Mamon’s appellate brief focuses on his various challenges to the

       trial court’s exercise of discretion in imposing a consecutive sentence. Some of

       his arguments are presented as free-standing claims of error and others are

       presented under the guise of ineffective assistance.1 We begin with the former.

       As a general rule, “most free-standing claims of error are not available in a

       postconviction proceeding because of the doctrines of waiver and res judicata.”

       Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001). If an issue was known

       and available, but not raised on direct appeal, it is waived. Id. at 597. If it was

       raised on appeal, but decided adversely, it is res judicata. Id.


[10]   To the extent Mamon challenges the trial court’s exercise of discretion in

       identifying and weighing aggravating and mitigating circumstances, such issue

       is waived. Likewise, Mamon cannot now challenge what he perceives to be an

       inadequate sentencing statement as this argument was known and available for

       direct appeal, but not presented. Mamon also argues that the trial court did not

       give a “fair consideration” to all of the circumstances. Appellant’s Brief at 4.

       This issue was implicitly decided adversely to Mamon in this court’s decision

       on direct appeal that Mamon’s sentence (including the consecutive aspect

       thereof) was not inappropriate. See Mamon, No. 30A05-1309-CR-440, slip op. at

       6.




       1
        After the State filed its Appellee’s Brief, Mamon filed a “Notice of Appellant’s Reply Statement” with this
       court asserting that he “clearly raised . . . claims pertaining to the effectiveness of appellate counsel.”

       Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016           Page 5 of 6
[11]   To the extent Mamon’s arguments are framed in terms of ineffective assistance

       of counsel, his claims fail. A petitioner will prevail on a claim of ineffective

       assistance of counsel only upon a showing that counsel’s performance fell

       below an objective standard of reasonableness and that the deficient

       performance prejudiced the petitioner. Bethea, 983 N.E.2d at 1138. Here,

       Mamon moved for summary judgment and included only sentencing orders in

       support thereof, which provide nothing from which to gauge his trial counsel’s

       performance or any resulting prejudice to Mamon. Mamon presented no other

       evidence to satisfy his burden of establishing the two prongs of an ineffective

       assistance claim. The post-conviction court did not err in denying Mamon’s

       requested relief.


[12]   Judgement affirmed.


[13]   Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016   Page 6 of 6
