                                                               FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                            Feb 19 2013, 9:23 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




APPELLANT PRO SE                                ATTORNEYS FOR APPELLEE:

TYRONE FRAZIER                                  GREGORY F. ZOELLER
Michigan City, Indiana                          Attorney General of Indiana

                                                CYNTHIA L. PLOUGHE
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TYRONE FRAZIER,                                 )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )       No. 49A02-1202-PC-113
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Lisa F. Borges, Judge
                           Cause No. 49G04-8908-PC-96817



                                    February 19, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       In this case, the appellant-petitioner, Tyrone Frazier, is appealing from the denial

of his petition for post-conviction relief, claiming that his trial counsel was ineffective for

several reasons. Specifically, Frazier claims that his trial counsel should have challenged

his competency at the time of his guilty plea, that counsel made no effort to locate the

victim of the offense, and that counsel should have filed a notice of alibi.

       Frazier also maintains that his trial counsel was deficient for not challenging the

trial court’s authority to accept the plea agreement and that he did not enter into his plea

knowingly and voluntarily.

       Frazier does not prevail on his ineffective assistance of trial counsel claims.

Moreover, Frazier has waived his contention regarding the trial court’s authority to

accept his plea agreement.         Finally, we agree with the post-conviction court’s

determination that Frazier knowingly and voluntarily pleaded guilty. As a result, we

affirm the judgment of the post-conviction court.

                                           FACTS

       The factual basis, as admitted by Frazier at his guilty plea hearing on February 12,

1991, establishes that officers from the Indianapolis Police Department responded to a

stabbing that was reported at a residence on Washington Street at approximately 4:30

a.m. on August 27, 1989. The officers spoke to Urban Starks who stated that he and

Sonja Gillespie were at the residence when Frazier knocked on the door. Starks went to

speak to Frazier initially. As Gillespie exited the room, she and Frazier began to argue.

Frazier then stabbed Gillespie with a “butcher type knife.” Appellant’s App. p. 326.

                                              2
Gillespie suffered from stab wounds on her face and legs. Starks ran for help and when

he returned he saw Frazier driving away.

       At the guilty plea hearing, Frazier stated, “That’s basically what happened, yes.”

Id. at 327. The trial court asked Frazier, “And you did stab her with a knife resulted [sic]

in cuts?” to which Frazier responded, “Yes.” Id.

       The State charged Frazier with Count I, class A felony attempted murder, and

Count II, class B felony criminal confinement. Frazier initially retained private counsel,

but on November 26, 1990, the trial court found Frazier to be indigent and appointed

public defender, Peter Nugent, to represent him.

       On December 11, 1990, the parties advised the trial court that they had reached a

plea agreement. On February 12, 1991, the State added Count III, class C felony battery,

to which Frazier pleaded guilty. In exchange for a guilty plea to that offense, the State

dismissed Counts I and II. The State provided a factual basis for the battery charge and

Frazier admitted to the facts, including stabbing the victim. The trial court accepted the

agreement and sentenced Frazier according to a set term of eight years with two years

executed and six years suspended.

       Frazier filed a petition for post-conviction relief in 2003 and a final amended

petition in August 2010, claiming ineffective assistance of trial counsel. Frazier also

claimed that he did not knowingly or voluntarily enter into the guilty plea.

       An evidentiary hearing was conducted on September 14, 2010, at which Nugent

testified that he had little recall about Frazier’s case because the case was nearly twenty

                                             3
years old. On January 13, 2012, the post-conviction court issued its findings of fact and

conclusions of law denying Frazier’s request for relief. Frazier now appeals.

                            DISCUSSION AND DECISION

               I. Standard of Review—Post-Conviction Relief, Generally

      A petitioner who has been denied post-conviction relief faces a rigorous standard

of review on appeal. Dewitt v. State, 755 N.E.2d 167, 170 (Ind. 2001). The post-

conviction court’s denial of relief will be affirmed unless the petitioner shows that the

evidence leads “unerringly and unmistakably to a decision opposite that reached by the

post-conviction court.” McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). A post-

conviction petitioner has the burden of establishing grounds for relief by a preponderance

of the evidence. Ind. Post-Conviction Rule 1(5); Ben-Yisrayl v. State, 738 N.E.2d 253,

258 (Ind. 2000). A petitioner who has been denied post-conviction relief is therefore in

the position of appealing from a negative judgment. Ben-Yisrayl, 738 N.E.2d at 258.

Accordingly, we will not disturb the denial of relief unless “the evidence is without

conflict and leads to but one conclusion, and the post-conviction court has reached the

opposite conclusion.” McCary, 761 N.E.2d at 392. We consider only the probative

evidence and all reasonable inferences therefrom that support the post-conviction court’s

determination and will not reweigh the evidence. Bigler v. State, 732 N.E.2d 191, 194

(Ind. Ct. App. 2000). The post-conviction court’s findings of fact are accepted unless

they are “clearly erroneous.” Davidson v. State, 763 N.E.2d 441, 443-44 (Ind. 2001).



                                            4
                                   II. Frazier’s Claims

                        A. Ineffective Assistance of Trial Counsel

                                  1. Standard of Review

       When reviewing claims of ineffective assistance of counsel, we begin with a

strong presumption that the petitioner’s counsel rendered adequate legal assistance.

Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002). To rebut this strong presumption, a

petitioner must show both that: 1) counsel’s performance fell below an objective standard

of reasonableness based on the prevailing professional norms; and 2) there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have been

different. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citing Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984)).            A reasonable probability is one

“sufficient to undermine confidence in the outcome.” Id.

       We afford deference to counsel’s choice of strategy and tactics. McCary, 761

N.E.2d at 392. Isolated mistakes, poor strategy, inexperience, and instances of bad

judgment do not necessarily render representation ineffective. Id. Also, an inability to

satisfy either prong of this test is fatal to an ineffective assistance claim. Vermillion v.

State, 719 N.E.2d 1201, 1208 (Ind. 1999).

       In this case, Frazier’s conviction stems not from a trial, but a guilty plea.

Therefore, a petitioner who alleges ineffective assistance of counsel in overlooking a

defense leading to a guilty plea must show a reasonable probability that, had the defense



                                             5
been raised, the petitioner would not have pleaded guilty and would have prevailed at

trial. Helton v. State, 907 N.E.2d 1020, 1023-24 (Ind. 2009).

              2. No Challenge to Frazier’s Competency Prior to Guilty Plea

       Frazier argues that his trial counsel was ineffective because his competency to

enter into the plea agreement should have been challenged.          First, we note that a

defendant is not competent to stand trial when he is unable to understand the proceedings

and assist in the preparation of his defense. Ind. Code § 35-36-3-1. The right to a

competency hearing, however, is not absolute. Campbell v. State, 732 N.E.2d 197, 202

(Ind. Ct. App. 2000). A hearing is required only when a trial judge is confronted with

evidence creating a reasonable or bona fide doubt as to a defendant’s competency, which

is defined as whether a defendant currently possesses the ability to consult rationally with

counsel and factually comprehend the proceedings against him. Id.

       In this case, there is no such evidence. More specifically, defense counsel Nugent

acknowledged in his testimony that Frazier was receiving social security benefits because

of some disability. Tr. p. 20. Nugent also testified that when he spoke with Frazier, he

knew that there were some “comprehension issues.” Id. at 20, 34. However, Nugent did

not detect that Frazier was incompetent. Id. at 111. Moreover, Nugent testified that had

he noticed such an indication, he would have requested a competency evaluation for

Frazier. In short, Nugent maintained his belief that Frazier was, and is, competent. Id. at

112.



                                             6
       We note that the only evidence of Frazier’s alleged incompetence arose from his

contention that he could not read or write. However, the record suggests that Frazier was

reading and reviewing documents at some point during the proceedings. Tr. p. 35.

Moreover, Frazier did not call his original counsel to testify at the post-conviction

hearing. Thus, the post-conviction court was well within its province to believe that

Frazier’s defense counsel would not have supported his contention that he was

incompetent when he pleaded guilty. See Whitlock v. State, 456 N.E.2d 717, 718 (Ind.

1983) (stating that a trial court is justified in inferring that a defense counsel who is not

called to testify would not have corroborated the acts and omissions that led to the

alleged inadequate representation).

       Also, Frazier’s interaction with the trial court at the time of the guilty plea hearing

reveals an individual who was far from incompetent. Frazier conversed with the trial

judge on various issues and made some clarifications. Appellant’s App. p. 329, 332.

Frazier also asked the trial court if he might be eligible to receive “status one, non-

reporting probation.” Id. at 335. He also asked for no more than a year of probation and

assisted Nugent in clarifying some factual issues. Id. at 328, 329, 332.

       In light of these circumstances, it is apparent that Frazier has failed to prove that

he was incompetent and he has failed to prove any resulting prejudice. Thus, we affirm

the post-conviction court’s ruling with regard to this issue.




                                              7
                              3. Alleged Failure to Investigate

                                  i. Location of the Victim

       Frazier further claims that his trial counsel was ineffective for failing to adequately

investigate the circumstances surrounding the case before he pleaded guilty. Specifically,

Frazier argues that his trial counsel failed to use diligence in an attempt to locate

Gillespie, the victim in this case.

       As discussed above, Nugent had little memory of this case twenty years later. Tr.

p. 8, 43. On the other hand, the record suggests that both the State and the defense knew

where Gillespie could be located when Frazier pleaded guilty. Gillespie was not a

random victim or stranger to Frazier. In fact, she was pregnant with Frazier’s child at the

time. Id. at 130. Additionally, Gillespie’s affidavit reveals that she was not in hiding.

Rather, she had returned to her Wisconsin home. Appellant’s App. p. 412.

       The totality of the evidence supports the conclusion that Gillespie was not missing

and could be located and brought to attend a trial if necessary. However, as noted above,

Frazier chose to plead guilty, which negated any need to bring Gillespie to Indiana from

her home in Wisconsin. As a result, the evidence supports the post-conviction court’s

conclusion that Frazier failed to prove a deficiency in Nugent’s representation in light of

the allegation that he failed to locate an allegedly missing witness.

       Moreover, Frazier did not contend or demonstrate that the State was unable to

locate Urban Starks. According to the factual basis that Frazier admitted as true, Starks

was the individual who witnessed the stabbing and called the police to the scene. It is

                                              8
apparent that Starks’s testimony, alone, would have been sufficient to prove the charges

against Frazier. However, Frazier focused his claims solely on Gillespie’s availability.

As the post-conviction court determined, there is no evidence in the record that Starks

was unavailable or that the State had any difficulty in locating him. Appellant’s App. p.

772. For these reasons, the record supports the post-conviction court’s denial of relief

with regard to this claim.

                      ii. Compliance with Indiana Code § 35-35-3-2

       Frazier also argues that counsel was ineffective in his preparation of this case for

failing to challenge the trial court’s authority to accept his guilty plea because the State

allegedly failed to comply with Indiana Code section 35-35-3-2. This statute requires the

State to notify the victim of a crime that a plea agreement exists.

       We note that Frazier has failed to preserve this claim because he did not advance

this contention in his petition for post-conviction relief. Post-Conviction Rule 1, section

8 requires all issues to be raised in the post-conviction petition. Ind. Post-Conviction

Rule 1, § 8. Because Frazier did not include this claim in his petition for post-conviction

relief, he cannot raise it for the first time on appeal. Lane v. State, 521 N.E.2d 947, 949

(Ind. 1988).

       Additionally, we do not believe that Indiana Code section 35-35-3-2 is designed to

benefit a criminal defendant. The statute acknowledges the rights that victims have in

criminal proceedings to be informed of what is occurring in their cases. In short, that

statute should not be read to inure to the accused’s advantage.

                                              9
                                     iii. Alibi Defense

       Frazier also contends that his trial counsel was ineffective for failing to file a

notice of alibi. However, the record does not support the conclusion that a viable alibi

existed when Frazier pleaded guilty.

       Nugent testified that he would have talked with Frazier about the charges against

him and the possible defenses that could be raised. Tr. p. 109. Nugent also testified that

he would have filed a notice of alibi if he was aware of one. Id. at 79. However, Nugent

could not recall any discussion about the possibility of raising an alibi defense. Id. at 66.

       We also note that Frazier’s alleged alibi defense was disproved by his own

evidence and testimony. Indeed, the record shows that while Frazier may have been

arrested in Colorado, the evidence established that he went there after committing the

instant offense.   An exhibit that Frazier submitted is a transcript of a hearing on

November 29, 1989, at which Frazier testified he had contacted his original defense

counsel prior to leaving town and before the charges were filed. Frazier told counsel that

if charges were filed, he would return from Colorado and surrender. Appellant’s App. p.

90.

       Charges in this case were filed on August 28, 1989, one day after the crime. Id. at

76. Frazier’s testimony, therefore, negates any alibi defense because it shows that he was

in Indiana—not Colorado—when the crime was committed. Thus, there is no evidence

of deficient performance or prejudice. As a result, we decline to set aside the post-

conviction court’s ruling on this issue.

                                             10
                        iv. Gillespie’s Alleged Motive to Fabricate

       Frazier next contends that his trial counsel was ineffective for failing to produce

evidence of Gillespie’s motive to fabricate the allegations against him. However, Frazier

did not question Nugent regarding this issue. Additionally, Frazier did not call the

attorney that he had originally retained to testify. In short, the record is devoid of any

suggestion as to why Gillespie might have fabricated the charges against Frazier. As a

result, Frazier has not satisfied his burden of establishing deficient performance or

resulting prejudice with regard to this issue. Thus, his claim fails.

                          D. Knowing and Voluntary Guilty Plea

       Frazier next claims that the post-conviction court should have determined that he

did not enter his guilty plea knowingly and voluntarily.         More particularly, Frazier

contends that he pleaded guilty because he believed that his remaining incarceration

would be spent in jail and that he would have no parole. Appellant’s Br. p. 42.

         We note that it is Frazier’s burden to establish that he was coerced or misled into

pleading guilty.    Cornelious v. State, 846 N.E.2d 354, 357 (Ind. Ct. App. 2006).

However, Frazier proves nothing of the sort beyond his own self-serving contentions.

The plea agreement itself provides no such terms. Appellant’s App. p. 231. The trial

court advised Frazier of the consequences if he committed new crimes while on

probation. Frazier acknowledged that he understood those terms. Id. at 323. Frazier

does not point to anything in the record that would support his contention as to where he

would serve his time. The portion of the record that he directs us to is simply a general

                                             11
colloquy for guilty pleas regarding mandatory consecutive and non-suspendable

sentences, the court being bound by an agreement it accepts, the factual basis, and

counsel’s argument that Frazier “wished” that he could serve his period of incarceration

in Colorado. Id. at 325, 326, 331. In short, nothing reveals an expectation by Frazier—

only his desire. Thus, Frazier failed to establish that he did not knowingly or voluntarily

enter into the plea agreement, and he has not demonstrated that the post-conviction

court’s ruling on this issue is clearly erroneous. As a result, we conclude that the post-

conviction court properly denied Frazier’s request for relief.

       The judgment of the post-conviction court is affirmed.

RILEY, J., and BARNES, J., concur.




                                             12
