 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                           Oct 31 2014, 9:55 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




APPELLANT PRO SE:                                  ATTORNEYS FOR APPELLEE:

GREGORY GREEN                                      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

GREGORY GREEN,                                     )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
           vs.                                     )       No. 49A04-1311-PC-610
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )

                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Steven Eichholtz, Judge
                            Cause No. 49G20-0005-PC-87246



                                        October 31, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Gregory Green (“Green”) appeals pro se the Marion Superior Court’s denial of his

petition for post-conviction relief and raises two issues, which we restate as:

       I. Whether Green received ineffective assistance of trial counsel; and,

       II. Whether the post-conviction court erred when the court refused Green’s request
       to subpoena his trial counsel to testify at the post-conviction hearing.

       We affirm.

                              Facts and Procedural History

       In 2000, Green was charged with Class A felony dealing in heroin, Class C felony

possession of heroin, and Class D felony possession of cocaine.           Law enforcement

officials found the heroin and cocaine as the result of a traffic stop. Prior to trial, Green

moved to suppress the evidence found during the traffic stop and search of Green’s

vehicle. The trial court denied the motion and Green filed an interlocutory appeal.

       Our court affirmed the trial court’s denial of Green’s motion to suppress. Our

court recounted the following facts concerning the traffic stop:

       At approximately 11:45 p.m. on May 5, 1999, Officer Craig Wildauer
       (“Wildauer”) of the Indianapolis Police Department saw a blue Oldsmobile
       with no visible license plate traveling southbound on Interstate 65 at a high
       rate of speed. Wildauer activated the emergency lights on his marked
       police car and initiated a traffic stop. When Wildauer approached the
       driver’s side of the Oldsmobile, he saw a paper license plate on the rear
       side window and observed Green leaning toward the passenger-side front
       seat with his hands on a fast-food bag. Green turned to Wildauer and
       “looked startled.” Wildauer asked Green for his driver’s license and
       registration. Green, who “appeared nervous,” told Wildauer that the
       Oldsmobile was a rental and shakily handed him an Illinois identification
       card and rental paperwork. Wildauer asked Green to exit the Oldsmobile
       and stand at the front of the police car.
              Wildauer relayed Green’s information over the radio for a computer
       check of his driving and warrant status. Wildauer asked Green where he
       was going. Green replied that he was going to Montgomery, Alabama, to

                                             2
retrieve some paperwork from his brother and then return to Chicago.
Wildauer noticed that Green “began sweating on his forehead and face,”
“grasp[ed] his hands,” “had a lot of rapid eye movement,” and began
“pacing back and front [sic], a lot of nervous tendencies.” Wildauer asked
Green if he had been arrested before. Green responded that he was on
parole for homicide in Illinois. The check of Green’s identification
confirmed this statement and indicated that he had a valid driver’s license.
Wildauer returned Green’s identification and rental paperwork and “told
him he was free to go.”
       After Green had taken “three (3) to five (5) steps” away, Wildauer
asked if he “had a minute” and whether he could ask Green “a few
questions.” Green said “yes” and walked back toward Wildauer. Wildauer
queried Green about the nature of his trip and asked why his brother “didn’t
just fed ex the packet, the paperwork to him.” Green stared silently at
Wildauer. Wildauer then asked Green “if there [were] any weapons in the
vehicle, any large sums of money, [and] if there [were] any narcotics in the
vehicle,” specifically “marijuana, cocaine, heroin, and methamphetamine.”
Green answered “no” to all these questions but broke eye contact with
Wildauer and looked at the ground when responding to the question about
heroin. Wildauer asked if there was any stolen property in the Oldsmobile.
Green answered “no.” Wildauer then asked if he could search the
Oldsmobile. Green responded “yes.”
       Wildauer asked Green to stand at the front bumper of the police car
and asked Officer John Arvin (“Arvin”), who was riding with Wildauer, to
watch Green. Wildauer began searching the front seat of the Oldsmobile,
where he had initially seen Green reaching toward the fast-food bag. Green
approached the Oldsmobile, and Wildauer told him to return to the police
car’s bumper. Wildauer resumed his search and felt a “hard rock like
substance” in the fast-food bag, at which point Green again approached the
Oldsmobile. Wildauer told Green to resume his position at the front of the
police car and again instructed Arvin to watch Green. Before Wildauer
could return to the front seat of the Oldsmobile, Green “walked up on [him]
again.” Wildauer told Green to place his hands on the police car and started
to conduct a patdown search when Green “raised his right hand at [him] in
an aggressive manner and became physical with [him].” Wildauer
handcuffed Green and told Arvin to complete the patdown search.
       Wildauer retrieved his “narcotics K-9 dog” from the police car and
led him to the Oldsmobile. The dog “made a positive indication for the
odor of narcotics on the passenger side door.” Wildauer then searched the
Oldsmobile and found pellets of what was later determined to be heroin in
the fast-food bag. Wildauer placed Green under arrest. A small amount of
cocaine was later found in a folded piece of paper in Green’s wallet.


                                     3
Green v. State, No. 49A02-0109-CR-620, Slip op. at 2-4 (Ind. Ct. App. June 14, 2002)

(footnote and record citations omitted).

       Green’s appellate counsel for the interlocutory appeal, who also served as his trial

counsel, argued that Green’s continued detention after the reason for the traffic stop had

dissipated was unreasonable under Article I, Section 11 of the Indiana Constitution and

rendered his consent to search involuntary. Id. at 5. Green also argued that the search of

his vehicle was unreasonable under the Fourth Amendment because the officer lacked

sufficient articulable facts to suggest that Green was involved in criminal activity before

he began the search. We held that Green had waived both issues on appeal because he

failed to cite any authority for his assertion that he was detained by the officer after he

was told he was free to leave, and therefore, our court affirmed the trial court’s judgment.

Id. at 7-8.

       In January 2003, Green was tried in absentia, and the jury found him guilty on all

charges. Green was eventually arrested in Alabama on May 27, 2006, and returned to

Indiana. His sentencing hearing was held on August 9, 2006. The trial court considered

Green’s criminal history as an aggravating circumstance, and he was ordered to serve

consecutive terms of forty-five years for Class A felony dealing in heroin and two years

for Class D felony possession of cocaine.

       Green appealed his conviction and sentence. While preparing the record on appeal,

the court reporter discovered that the recording equipment had malfunctioned and the

transcript of the sentencing hearing was not available. Therefore, Green’s trial counsel

and the prosecuting attorney prepared a verified statement of the evidence as allowed by

                                             4
Indiana Appellate Rule 31. The trial court adopted the prosecutor’s statement but added

its own recollection. Green’s conviction and sentence were affirmed by our court on

September 13, 2007. See Green v. State, 873 N.E.2d 208, No. 49A02-0610-CR-951 (Ind.

Ct. App. Sept. 13, 2007).

       In that appeal, our court rejected Green’s claim that the trial court abused its

discretion when it denied his request for a continuance and proceeded to try him in

absentia. In a footnote, we also observed that Green’s argument that the trial court

should not have ordered his enhanced sentences to be served consecutive was not

supported by statute or caselaw. Id. at 1.

       On October 7, 2008, Green filed a pro se petition for post-conviction relief. The

petition was amended on December 17, 2012. In the original and amended petitions,

Green argued that his trial counsel was ineffective for: 1) failing to adequately argue that

the vehicle search violated Article I, Section 13 of the Indiana Constitution and the

Fourth Amendment of the United States Constitution, and 2) failing to notify Green that

the trial court’s recording equipment had malfunctioned during his sentencing hearing

and failing to allow Green to assist in the preparation of the statement of the evidence.

He also argued that his appellate counsel was ineffective for failing to interview Green

while counsel was preparing the appeal to discuss what Green and his witnesses testified

to at the sentencing hearing.

       A hearing was held on Green’s post-conviction petitions on September 6, 2013.

Prior to the hearing, Green requested a subpoena to order his trial counsel to appear at the

hearing. His request was denied. Therefore, at the hearing, only Green and his appellate

                                             5
counsel testified. On October 18, 2013, the post-conviction court issued its findings of

facts and conclusions thereon, denying Green’s petition for post conviction relief. Green

now appeals.

                                   Standard of Review

       Post-conviction proceedings are not “super appeals” through which convicted

persons can raise issues they failed to raise at trial or on direct appeal. McCary v. State,

761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners

a limited opportunity to raise issues that were unavailable or unknown at trial and on

direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction

petitioner bears the burden of establishing grounds for relief by a preponderance of the

evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial

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

negative judgment. Id. To prevail on appeal from the denial of post-conviction relief, the

petitioner must show that the evidence as a whole leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Id. at 643-44.

       Where, as here, the post-conviction court makes findings of fact and conclusions

of law in accordance with Indiana Post-Conviction Rule 1(6), we cannot affirm the

judgment on any legal basis, but rather, must determine if the court’s findings are

sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App.

2011), aff’d on reh’g, 947 N.E.2d 962. Although we do not defer to the post-conviction

court’s legal conclusions, we review the post-conviction court’s factual findings under a

clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or judge

                                             6
the credibility of witnesses, and we will consider only the probative evidence and

reasonable inferences flowing therefrom that support the post-conviction court’s decision.

Id.

                       I. Ineffective Assistance of Trial Counsel

      Green argues that the post-conviction court clearly erred when it rejected his claim

of ineffective assistance of trial counsel.       Our supreme court summarized the law

regarding claims of ineffective assistance of trial counsel in Timberlake v. State as

follows:

      A defendant claiming a violation of the right to effective assistance of
      counsel must establish the two components set forth in Strickland v.
      Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First,
      the defendant must show that counsel’s performance was deficient. This
      requires a showing that counsel’s representation fell below an objective
      standard of reasonableness, and that the errors were so serious that they
      resulted in a denial of the right to counsel guaranteed the defendant by the
      Sixth Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. 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. A reasonable probability is a probability sufficient to undermine
      confidence in the outcome.

      Counsel is afforded considerable discretion in choosing strategy and tactics,
      and we will accord those decisions deference. A strong presumption arises
      that counsel rendered adequate assistance and made all significant decisions
      in the exercise of reasonable professional judgment. The Strickland Court
      recognized that even the finest, most experienced criminal defense
      attorneys may not agree on the ideal strategy or the most effective way to
      represent a client. Isolated mistakes, poor strategy, inexperience, and
      instances of bad judgment do not necessarily render representation
      ineffective. The two prongs of the Strickland test are separate and
      independent inquiries. Thus, [i]f it is easier to dispose of an ineffectiveness
      claim on the ground of lack of sufficient prejudice . . . that course should be
      followed.


                                              7
753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted).

          In his petitions for post-conviction relief, Green argued that his trial counsel was

ineffective for 1) failing to adequately argue that the vehicle search violated Article I,

Section 13 of the Indiana Constitution and the Fourth Amendment of the United States

Constitution, and 2) failing to notify Green that the trial court’s recording equipment had

malfunctioned during his sentencing hearing and failing to allow Green to assist in the

preparation of the statement of the evidence.

       A. The Vehicle Search

       Prior to his trial, Green’s trial counsel filed a motion to suppress the evidence

obtained during the search of Green’s vehicle. Officer Wildauer testified that Green

consented to the search of his vehicle, and Green did not testify at the suppression

hearing. In his memorandum of law in support of his petition for post-conviction relief,

Green claimed that trial counsel was ineffective for failing to argue that Officer

Wildauer’s inquiry concerning whether Green had any narcotics in the vehicle was

unreasonable under Article I, Section 11 of the Indiana Constitution.

       Specifically, Green noted Officer Wildauer’s testimony that he received consent to

search the vehicle and self-servingly stated that he denied giving his consent. Green then

argued:

       [H]owever, it is not the voluntariness of Green’s consent that is the
       issue, it is the inquiry about drugs, which preceded the consent, that’s
       unreasonable and unconstitutional under Article 1, Section 11.

Appellant’s App. p. 104 (emphasis in original).



                                               8
       In his petition, Green also claimed that his counsel should have argued that the

officer lacked articulable facts to give rise to reasonable suspicion of illegal activity that

would justify his further detention under the Fourth Amendment. Green argued that his

“consent to the search was the product of an unlawful detention,” and therefore, “‘the

consent was tainted by the illegality and was ineffective to justify the search.’” Id. at 112

(quoting Royer v. Florida, 460 U.S. 419, 507-08 (1983)).

       But at the hearing on his original and amended petitions for post-conviction relief,

for the first time, Green argued that trial counsel prevented him from testifying at the

suppression hearing, and that he would have testified that he did not consent to the

officer’s search of his vehicle. In this appeal, Green similarly abandons the arguments he

raised in his petitions for post-conviction relief and focuses on his claim that he did not

consent to the search. Because Green’s claim that trial counsel was ineffective for failing

to present his testimony at the suppression hearing was not raised in his petitions for post-

conviction relief, his claim is waived.1 See Allen v. State, 748 N.E.2d 1158, 1171 (Ind.

2001); Ind. Post-Conviction Rule 1(8) (“All grounds for relief available to a petitioner

under this rule must be raised in his original petition.”).

       B. Sentencing Hearing and Statement of the Evidence

       In his amended petition for post-conviction relief, Green also argued that his trial

counsel was ineffective for failing to notify him that his sentencing hearing was not

recorded due to an equipment malfunction and for failing to allow him to assist in

1
 From the post-conviction record, we may reasonably infer that Green had a conversation with his trial
counsel concerning his proposed testimony at the hearing on the motion to suppress, but counsel advised
Green not to testify. See tr. p. 36.
                                                  9
preparing the Appellate Rule 31 Statement of the Evidence.2 Specifically, Green claimed

that he was denied the “right to be heard” due to trial counsel’s ineffectiveness. See

Appellant’s App. p. 124.

        Green correctly observes that a criminal defendant has a right to be present at all

critical stages of trial and sentencing. See Brown v. State, 839 N.E.2d 255, 227 (Ind. Ct.

App. 2005), trans. denied; Adams v. State, 693 N.E.2d 107, 109 (Ind. Ct. App. 1998).

However, Green was present at his sentencing hearing. And Green has not cited any

authority holding that preparation of a Statement of the Evidence is a critical stage of a

sentencing proceeding. Green also claims that because he was not asked to participate in

recreating the record, his appellate counsel did not have a complete copy of the record;

therefore, counsel was unable to effectively challenge his sentence.

        Pursuant to Appellate Rule 31,3 the trial court adopted the State’s statement of the

evidence, but with the following additional recollections:

        1. The Court found that the defendant’s prior criminal history was an
        aggravating factor; particularly his prior Murder conviction and to a lesser
        degree his prior Resisting Law Enforcement conviction.
        2. The Court found no mitigating factors.
        3. The Court found that the aggravating factors outweighed the mitigating
        factors and imposed an aggravated sentence of forty-five years.

Ex. Vol., Petitioner’s Ex. 6.

2
  Green’s trial counsel submitted a statement of the evidence to the trial court, and counsel informed the
court that she did not have “independent verifiable recollection” of the sentencing hearing. Appellant’s
App. pp. 140-43. For this reason, trial counsel should have allowed Green to participate in preparing his
statement of the evidence.
3
 In relevant part, Appellate Rule 31(A) provides: “[I]f no Transcript of all or part of the evidence is
available, a party or the party’s attorney may prepare a verified statement of the evidence from the best
available sources, which may include the party’s or the attorney’s recollection. The party shall then file a
motion to certify the statement of evidence with the trial court or Administrative Agency. The statement
of evidence shall be attached to the motion.”
                                                    10
       At the post-conviction hearing, Green submitted a “Verified Statement of

Evidence as per Recollection and Witnessed by Petitioner for Sentencing Hearing on

August 9, 2006.” See Ex. Vol., Petitioner’s Ex. 7. Green’s exhibit contains a more

detailed recollection of his testimony, his cousin’s testimony and Dr. Richard Maye’s

testimony than the description the State provided of those individuals’ testimonies in its

own statement of the evidence.

       Importantly, the trial court considered all witness testimony before sentencing

Green, and the court declined to find any mitigating circumstances. It is well-settled that

       The finding of mitigating factors is within the discretion of the trial court.
       It is true that a trial court is not obligated to weigh or credit the mitigating
       factors in the manner a defendant suggests they should be weighed or
       credited. However, when a trial court fails to find a mitigator that the
       record clearly supports, a reasonable belief arises that the mitigator was
       improperly overlooked.

Cotto v. State, 829 N.E.2d 520. 525 (Ind. 2005) (internal citations omitted).

       Green does not argue that the evidence that his trial counsel failed to include in the

statement of the evidence supports any specific mitigating circumstances that the trial

court improperly overlooked. Moreover, our review of Green’s Exhibit 7 does not lead

us to conclude that the trial court abused its discretion when it sentenced Green.

Therefore, although trial counsel could have consulted with Green during preparation of

the Appellate Rule 31 Statement of the Evidence, Green has not established that he

suffered any prejudice as a result of counsel’s allegedly deficient performance.

       For all of these reasons, we conclude that Green failed to prove that he received

ineffective assistance of trial counsel.


                                             11
                                       II. Subpoena

       Green also argues that the post-conviction court abused its discretion when it

denied his request for a subpoena for his trial counsel.

       Indiana Post-Conviction Rule 1(9)(b) provides in pertinent part:

       If the 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. If the court finds the witness’ testimony would be
       relevant and probative, the court shall order that the subpoena be issued. If
       the court finds the proposed witness’ testimony is not relevant and
       probative, it shall enter a finding on the record and refuse to issue the
       subpoena.

The post-conviction court has discretion to determine whether to grant or deny the

petitioner’s request for a subpoena. Allen v. State, 791 N.E.2d 748, 756 (Ind. Ct. App.

2003), trans. denied. An abuse of discretion occurs when the court’s decision is against

the logic and effect of the facts and circumstances before the court. Id.

       Here, the post-conviction court denied Green’s request without entering a finding

as required by Rule 1(9)(b). And trial counsel’s testimony is certainly relevant to the

issue of ineffective assistance of trial counsel. Therefore, the post-conviction court

abused its discretion when it denied Green’s request to subpoena his trial counsel.

       However, the court’s error was harmless under the facts and circumstances of this

case. See Platt v. State, 168 Ind. App. 55, 59, 341 N.E.2d 219, 222 (1976). First, as we

discussed above, Green alleged that trial counsel would not “allow” him to testify at the

suppression hearing. Green desired to elicit trial counsel’s proposed testimony on this

issue in an attempt to prove that counsel was ineffective for failing to argue that Green


                                             12
did not consent to the vehicle search. However, Green waived this issue because it was

not raised in his petitions for post-conviction relief.

       Second, Green desired to admit trial counsel’s testimony that counsel failed to tell

him that the sentencing hearing could not be transcribed and that counsel failed to allow

Green to participate in preparing his Statement of the Evidence. Even if we assume that

trial counsel would have given the desired testimony, we have already concluded that

Green cannot establish any prejudice by counsel’s alleged deficient performance.

                                         Conclusion

       Green failed to prove that he was denied the effective assistance of trial counsel.

We also conclude that he was not prejudiced by the post-conviction court’s refusal to

subpoena trial counsel to appear at the post-conviction hearing. Accordingly, we affirm

the judgment of the post-conviction court.

       Affirmed.

RILEY, J., and CRONE, J., concur.




                                              13
