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                                Feb 28 2014, 9:08 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE:                                       ATTORNEYS FOR APPELLEE:

STEWART GASE                                            GREGORY F. ZOELLER
Westville, Indiana                                      Attorney General of Indiana

                                                        BRIAN REITZ
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

STEWART GASE,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 01A02-1306-PC-530
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                       APPEAL FROM THE ADAMS CIRCUIT COURT
                           The Honorable Chad E. Kukelhan, Judge
                                Cause No. 01C01-1106-PC-3


                                        February 28, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

          Stewart Gase (“Gase”) pled guilty to one count of Dealing in a Schedule II Narcotic,

as a Class B felony.1 He subsequently sought post-conviction relief, and his petition for

relief was denied. He now appeals.

          We affirm.

                                               Issues

          Gase raises two issues for our review, which we restate as:

             I.    Whether, in deciding to enter a guilty plea, he received ineffective
                   assistance of trial counsel as to the potential sentencing range of the
                   charges; and

            II.    Whether the trial court’s failure to advise Gase of the statutory
                   maximum and minimum penalties for his offenses was fundamental
                   error for which Gase should have received post-conviction relief.

                                   Facts and Procedural History

          On September 25, 2008, Gase sold Oxycodone, a Schedule II narcotic, to a

confidential informant. On September 26, 2008, and again on October 21, 2008, Gase sold

Hydromorphone, a Schedule II narcotic, to a confidential informant. On April 21, 2009, the

State charged Gase with three counts of Dealing in a Schedule II Controlled Substance, as

Class B felonies. On August 4, 2009, the State filed its Notice of Intent to Seek Habitual

Substance Offender Status,2 alleging that Gase had been convicted in 1984 of Dealing in




1
    Ind. Code § 35-48-4-2(a)(1).

2
    I.C. § 35-50-2-10.

                                                  2
Marijuana, as a Class D felony, and in 2005 of Possession of Marijuana, as a Class A

misdemeanor.

       On October 30, 2009, Gase and the State entered into a plea agreement, whereby Gase

agreed to plead guilty to a single count of Dealing in a Schedule II Controlled Substance, as a

Class B felony. Under the terms of the agreement, Gase would be sentenced to fifteen years

imprisonment, with five years suspended to probation, and the State would dismiss the two

remaining counts of Dealing in a Schedule II Controlled Substance, as Class B felonies, and

would not pursue a finding that Gase was a Habitual Substance Offender. The plea

agreement also provided that Gase would forego any right to challenge his sentence through

an appeal.

       A hearing on the plea agreement was conducted on October 30, 2009. During the

hearing, the trial court asked Gase questions to ensure that his plea was knowingly,

intelligently, and voluntarily given; Gase indicated this to be the case. At the hearing’s

conclusion, the trial court accepted the plea agreement and accepted Gase’s guilty plea.

       On January 8, 2010, a sentencing hearing was conducted. Due to statements by Gase

in the Presentencing Investigation report that made the factual basis of the plea unclear, the

sentencing hearing was continued to February 1, 2010. On February 1, 2010, the sentencing

hearing was completed, with testimony from a police officer used to establish the factual

basis for the plea. After this testimony, Gase did not offer any testimony disputing the

factual basis of his plea and reaffirmed his desire to plead guilty. The trial court accordingly




                                               3
entered judgment and, pursuant to the plea agreement, sentenced Gase to fifteen years

imprisonment with five years suspended to probation.

       On June 3, 2011, Gase, proceeding pro se, filed his petition for post-conviction relief.

On September 12, 2011, Gase moved to amend his petition for post-conviction relief, which

the post-conviction court granted on September 19, 2011. Gase filed his amended petition on

November 2, 2011.

       On February 6, 2013, a hearing was conducted, at the conclusion of which the post-

conviction court took the matter of Gase’s petition for relief under advisement. On May 23,

2013, the court entered findings and conclusions and denied Gase’s petition for post-

conviction relief.

       This appeal ensued.

                                 Discussion and Decision

                                    Standard of Review

       Post-conviction relief is not intended to serve as “a ‘super-appeal.’” Ben-Yisrayl v.

State, 729 N.E.2d 102, 105 (Ind. 2000) (quoting Benefiel v. State, 716 N.E.2d 906, 911 (Ind.

1999)). Rather, post-conviction procedures “create a narrow remedy for subsequent

collateral challenges to convictions.” Id.

       The petitioner in a post-conviction proceeding bears the burden of establishing the

grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of post-

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


                                              4
judgment. Fisher, 810 N.E.2d at 674. On review, we will not reverse the judgment of the

post-conviction court unless the evidence as a whole unerringly and unmistakably leads to a

conclusion opposite that reached by the post-conviction court. 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,

findings of fact are accepted unless they are clearly erroneous and no deference is accorded

to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the

evidence and the credibility of the witnesses. Id.

                              Ineffective Assistance of Counsel

       Gase first contends that his trial counsel did not correctly advise him of the sentencing

range he faced if he were to have been convicted after a trial of the three counts of Dealing in

a Schedule II Narcotic, as Class B felonies, and if he were found to be a Habitual Substance

Offender.

       We review such claims under the standard set forth by the U.S. Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984). “First, a defendant must show that counsel’s

performance was deficient.”        Id. at 687.     This requires a showing that counsel’s

representation fell below an objective standard of reasonableness and that “counsel made

errors so serious that counsel was not functioning as ‘counsel’ guaranteed to the defendant by

the Sixth Amendment.” Id.

       “Second, a defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive the


                                               5
defendant of a fair trial,” that is, a trial where the result is reliable. Id. To establish

prejudice, a “defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

at 694. A reasonable probability is one that is sufficient to undermine confidence in the

outcome. Id.

       Counsel’s performance is presumed effective, and a defendant must offer strong and

convincing evidence to overcome this presumption. Ben-Yisrayl, 729 N.E.2d at 106. Where

it is possible to resolve a case on the question of prejudice, we should do so in order to avoid

“the often nettlesome question of whether the attorney’s performance was objectively

unreasonable.” State v. Van Cleave, 674 N.E.2d 1293, 1296 n.3 (Ind. 1996) (citing

Strickland, 466 U.S. at 697). Further, we afford counsel “‘considerable discretion in

choosing strategy and tactics, and we will accord those decisions deference.’” Curtis v.

State, 905 N.E.2d 410, 414 (Ind. Ct. App. 2009) (quoting Timberlake v. State, 753 N.E.2d

591, 603 (Ind. 2001)), trans. denied. We presume counsel “‘made all significant decisions in

the exercise of reasonable professional judgment.’” Id. (quoting Timberlake, 753 N.E.2d at

603). Counsel’s choice of strategies “will not be second-guessed even if the strategy in

hindsight did not serve the post-conviction petitioner’s best interests.” Id. (citing State v.

Moore, 678 N.E.2d 1258, 1261 (Ind. 1997)).

       Gase argues that trial counsel advised that he would face a maximum sentence of

thirty-eight years, that this advice was incorrect, and that he would not have entered into the

plea agreement had he known counsel’s advice was incorrect. In such circumstances, Gase


                                               6
was required to prove not only that counsel’s advice was incorrect, but also that there was “a

reasonable probability that the erroneous or omitted advice materially affected the decision to

plead guilty.” Segura v. State, 749 N.E.2d 496, 499 (Ind. 2001). It is not enough for Gase to

allege that he would not have entered a plea or to offer conclusory testimony to that effect.

Id. “Rather, a petitioner must demonstrate ‘special circumstances’ or ‘objective facts’

supporting the conclusion that the decision to plead was driven by the erroneous advice.”

Hacker v. State, 906 N.E.2d 924, 927 (Ind. Ct. App. 2009) (quoting Segura, 749 N.E.2d at

507), trans. denied.

       Here, Gase was charged with three Class B felonies, and the State filed notice that it

intended to pursue a finding that he was a Habitual Substance Offender. The sentencing

range for a Class B felony ran from six to twenty years imprisonment, with an advisory

sentence of 10 years. I.C. § 35-50-2-5. If Gase had been convicted at trial of all three

counts, and the three offenses arose from a single episode of criminal conduct, the trial court

could have sentenced him to consecutive terms of imprisonment. In that situation, Gase

would have faced an aggregate term of imprisonment of thirty years—that is, the advisory

term for a Class A felony. See I.C. § 35-50-1-2(c) (limiting the total term of imprisonment

for consecutive sentences, except in crimes of violence, to “the advisory sentence for a felony

which is one (1) class higher than the most series of the felonies for which a person has been

convicted”); I.C. § 35-50-2-4 (establishing an advisory term of thirty years imprisonment for

a Class A felony).




                                              7
       In addition, if Gase had been found to be a Habitual Substance Offender, his sentence

would have been enhanced by up to eight years imprisonment. I.C. § 35-50-2-10(f). Taken

with the maximum sentence available for consecutive terms of imprisonment for the Class B

felony charges, Gase faced a total term of imprisonment of thirty-eight years. Thus, his

counsel’s advice as to the maximum punishment he faced was not incorrect.

       Moreover, Gase has failed to establish that he was prejudiced even if counsel’s advice

had been incorrect. The maximum sentence for a single Class B felony conviction is twenty

years. Gase pled guilty and, under the plea agreement, received a term of imprisonment of

fifteen years, with five of those years suspended to probation, the dismissal of two other

Class B felony counts, and the State’s forbearance from pursuing a Habitual Substance

Offender finding. Under these circumstances, we cannot conclude that Gase was prejudiced

by any error that may have occurred. To the extent Gase contends that his sentence was

manifestly unreasonable, we note that petitions for post-conviction relief are not super-

appeals, and accordingly decline to address that contention. See Ben-Yisrayl, 729 N.E.2d at

105.

       We therefore affirm the post-conviction court’s denial of the petition for post-

conviction relief on the basis of ineffective assistance of counsel.

                                     Fundamental Error

       Gase also contends that the trial court committed fundamental error when it did not

advise him of the maximum and minimum sentences possible for his offenses as charged.

Intermixed with this argument is his contention that the trial court erred because it


                                              8
disregarded his claims, as reflected in the Presentencing Investigation report, that he was

coerced into entering a guilty plea.

       A defendant in a post-conviction proceeding may allege a claim of fundamental error

only when asserting either (1) “[d]eprivation of the Sixth Amendment right to effective

assistance of counsel,” or (2) “an issue demonstrably unavailable to the petitioner at the time

of his [or her] trial and direct appeal.” Lindsey v. State, 888 N.E.2d 319, 325 (Ind. Ct. App.

2008) (quoting Canaan v. State, 683 N.E.2d 227, 235 n. 6 (Ind. 1997)), trans. denied. Yet the

question of proper advisement from the trial court was available at the time of trial or direct

appeal. Indeed, the trial court continued the sentencing hearing after Gase stated in the

Presentencing Investigation report that he felt coerced into entering into the plea agreement.

       Thus, Gase’s contention that the trial court committed fundamental error is not of the

type of cases from which post-conviction relief may be sought. We accordingly affirm the

post-conviction court’s denial of post-conviction relief on this question.

                                         Conclusion

       Gase did not receive ineffective assistance of trial counsel in entering his guilty plea.

Gase’s contention of fundamental error is not one properly brought for post-conviction relief.

       Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.




                                               9
