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 establishing                  Aug 13 2013, 7:25 am
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

SHELDON C. MCAULEY                                  GREGORY F. ZOELLER
Westville Correctional Facility                     Attorney General of Indiana
Westville, Indiana
                                                    JODI KATHRYN STEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

SHELDON C. MCAULEY,                                 )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )      No. 02A03-1302-PC-50
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                         The Honorable John F. Surbeck, Jr., Judge
                             Cause No. 02D06-1108-PC-101



                                         August 13, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
       Sheldon C. McAuley appeals the denial of his petition for post-conviction relief

(“PCR”). We conclude that he waived his arguments on appeal because he failed to make

them to the post-conviction (“PC”) court. Therefore, we affirm.

       In October of 2010, a jury found McAuley guilty of class C felony battery, class D

felony residential entry, and class A misdemeanor interference with the reporting of a crime.

The trial court found that McAuley’s criminal history and his failure to respond to

rehabilitation efforts were aggravating circumstances, that there were no mitigating

circumstances, and sentenced McAuley to an aggregate term of eight years. On direct appeal,

we rejected McAuley’s challenge to the sufficiency of the evidence and affirmed his

convictions. McAuley v. State, No. 02A03-1011-CR-646 (Ind. Ct. App. July 14, 2011).

       McAuley, pro se, filed a PCR petition, claiming that appellate counsel provided

ineffective assistance by failing to adequately present the issue that the investigating officer’s

testimony as to the victim’s statements the night of the incident was inadmissible hearsay.

Specifically, he asserted that the investigating officer’s testimony was inadmissible because it

contained “multiple hearsay,” that is, “hearsay within hearsay.” Appellant’s App. at 64-65.

McAuley conceded that the primary statements made by the victim to the investigating

officer were admissible as excited utterances pursuant to Indiana Evidence Rule 803(2). Id.

at 94, 96. McAuley also claimed that appellate counsel was ineffective in failing to raise the

issue that “based on the gravity, nature, and number of prior offenses,” his criminal record

did not justify his eight-year sentence for class C felony battery and the trial court erred in not

finding mitigating circumstances. Id. at 123, 126, 128-29, 154-55. The PC court issued


                                                2
findings of fact and conclusions of law, concluding that McAuley’s appellate counsel had not

provided ineffective assistance and denying McAuley’s PCR petition.

        McAuley appeals the PC court’s rejection of his claim that appellate counsel provided

ineffective assistance in failing to adequately present the issue that the investigating officer’s

testimony was inadmissible hearsay.1 In his appellant’s brief, McAuley contends that

appellate counsel failed to adequately argue that the investigating officer’s testimony

regarding the victim’s statements was not admissible as an excited utterance pursuant to

Indiana Evidence Rule 803(2).2 Appellant’s Br. at 40-48. However, this is not the argument

McAuley presented to the PC court. In his PCR petition, McAuley asserted that appellate

counsel failed to argue that the investigating officer’s testimony was inadmissible because it

was “hearsay within hearsay.” Appellant’s App. at 65. In fact, McAuley conceded in his

PCR petition that the victim’s statements to the investigating officer on the night of the




        1
            McAuley claims that the PC court failed to provide findings of fact and conclusions of law on
appellate counsel’s failure to adequately present the inadmissible hearsay issue. We disagree. The PC court’s
findings 6 and 9 and conclusions 2 and 3 address this claim. Appellant’s App. at 9-10, 11, 13-15.
          McAuley also contends that because the State did not respond to specific paragraphs in his affidavit in
support of his PCR petition, the PC court was required to accept these paragraphs as true and, when accepted
as true, they conclusively establish his claim. Some of the uncontested paragraphs are statements concerning
the ultimate issues to be decided by the PC court and therefore were not facts of which McAuley could have
personal knowledge. Some uncontested paragraphs simply contain quotations from parts of the record, but
they do not establish McAuley’s claim. In sum, McAuley’s contention is meritless.
        2
           “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted,” and is generally inadmissible. Ind.
Evidence Rules 801 and 802. However, “[a] statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition” is not excluded by the hearsay
rule. Ind. Evidence Rule 803(2).


                                                       3
incident were admissible as excited utterances.3 Because McAuley failed to present the

argument he makes on appeal to the PC court, he has waived it for our review. See Walker v.

State, 843 N.E.2d 50, 58 n.2 (Ind. Ct. App. 2006) (“Issues not raised in the petition for post-

conviction relief may not be raised for the first time on post-conviction appeal.”), trans.

denied, cert. denied (2007); Koons v. State, 771 N.E.2d 685, 691 (Ind. Ct. App. 2002) (“The

failure to raise an alleged error in the petition waives the right to raise that issue on appeal.”),

trans. denied.

        McAuley also argues that his appellate counsel provided ineffective assistance in

failing to raise the issue that pursuant to Indiana Appellate Rule 7(B), McAuley’s sentence

was inappropriate in light of the nature of the offenses and his character.4 This is not the

same argument that he presented in his PCR petition. Although he cited Indiana Appellate

Rule 7(B) in his PCR petition, he did not base his inappropriateness argument on the nature

of his offenses and his character. Rather, the thrust of the argument in his PCR petition was

that the trial court erred in assigning too much aggravating weight to his criminal history and




        3
         In his affidavit in support of his PCR petition, McAuley also asserted that the investigating officer’s
testimony was inadmissible hearsay within hearsay and conceded that the victim’s statements to the officer
were admissible as excited utterances. Appellant’s App. at 416-18.
        4
           Indiana Appellate Rule 7(B) states, “The Court may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.”


                                                        4
in not finding mitigating circumstances.5 As such, McAuley has waived this argument. See

Walker, 843 N.E.2d at 58 n.2. Accordingly, we affirm the denial of McAuley’s PC petition.

        Affirmed.

KIRSCH, J., and VAIDIK, J., concur.




        5
           “Our Supreme Court has previously explained that under our advisory sentencing scheme, trial
courts no longer have any obligation to weigh aggravating and mitigating factors against each other when
imposing a sentence. Therefore, the weight the trial court gives to any aggravating circumstances is not subject
to appellate review.” Ramon v. State, 888 N.E.2d 244, 255 (Ind. Ct. App. 2008) (citing Anglemyer v. State,
868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218).

                                                       5
