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 the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT PRO SE:                                  ATTORNEYS FOR APPELLEE:

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

                                                   MARJORIE LAWYER-SMITH
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                                                                                 Mar 15 2013, 9:02 am
                               IN THE
                     COURT OF APPEALS OF INDIANA

TYRONE FRAZIER,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 49A02-1201-PC-11
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable James Osborn, Judge
                     The Honorable John Jay Boyce, Master Commissioner
                             Cause No. 49F15-8710-PC-12782


                                         March 15, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Tyrone Frazier appeals the denial of his successive petition for post-conviction relief.

He presents four issues for our review, only two of which we need to address:

          1.      Whether the trial court erred when it denied his motion to have an elected

                  judge preside over his successive post-conviction evidentiary hearing;

          2.      Whether Frazier’s claims in his petition for successive post-conviction relief

                  were res judicata.

We affirm.

                              FACTS AND PROCEDURAL HISTORY

          On October 22, 1987, the State charged Frazier with Class D felony possession of

marijuana.1 On March 10, 1988, Frazier pled guilty pursuant to a plea agreement, and the

trial court sentenced him to two years, all suspended.

          On August 29, 2003, Frazier filed a petition for post-conviction relief. He alleged

lack of evidence, ineffective assistance of trial counsel, and invalid guilty plea. The petition

also alleged a fourth ground not clear from the record before us, as the allegation apparently

was written on the reverse side of the petition, which Frazier did not included in the

Appendix filed herein. The post-conviction court denied his petition on October 20, 2003.

Frazier did not appeal from that denial.

          On March 12, 2008, we authorized Frazier to file a successive petition for post-

conviction relief, and Frazier filed his petition the same day, alleging ineffective assistance of

counsel and invalid guilty plea. On July 15, 2010, Frazier requested the post-conviction


1
    Ind. Code § 35-48-4-11.
                                                 2
court grant him permission to amend his petition, and the post-conviction court granted

permission. On August 9, 2010, Frazier amended his petition by adding a claim that the

judge pro tem that accepted his guilty plea had not been properly appointed.

       Frazier moved for his successive petition for post-conviction relief to be heard by a

judge elected to sit in Superior Court. His motion was denied. On August 18, 2010, and

March 23, 2011, the post-conviction court heard evidence. On December 13, 2011, it denied

Frazier’s petition.

                             DISCUSSION AND DECISION

       Frazier appears pro se. Pro se litigants are held to the same standards as licensed

attorneys and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344

(Ind. Ct. App. 2004).

       1.     Successive PCR Judge

       Frazier requested his successive petition for post-conviction relief be heard by a judge

elected to sit in Superior Court. Indiana law provides:

       (c) A party to a superior court proceeding that has been assigned to a
       magistrate appointed under this section may request that an elected judge of
       the superior court preside over the proceeding instead of the magistrate to
       whom the proceeding has been assigned. A request under this subsection must
       be in writing and must be filed with the court:
              (1) in a civil case, not later than:
                      (A) ten (10) days after the pleadings are closed; or
                      (B) thirty (30) days after the case is entered on the chronological
              case summary, in a case in which the defendant is not required to
              answer; or
              (2) in a criminal case, not later than ten (10) days after the omnibus
              date.

       Upon a timely request made under this subsection by either party, the
                                       3
       magistrate to whom the proceeding has been assigned shall transfer the
       proceeding back to the superior court judge.

Ind. Code § 33-33-49-32. When, as here, the issue is the interpretation of a statute, we

review the matter de novo. Gaudin v. Austin, 921 N.E.2d 895 (Ind. Ct. App. 2010), trans.

granted, opinion reinstated 936 N.E.2d 1241 (Ind. 2010).

       On March 12, 2008, we authorized Frazier’s successive petition for post-conviction

relief, and he filed his petition the same day. On March 31, 2008, he filed a Motion for

Seated Judge to Preside. The motion was denied, and Master Commissioner John Jay Boyce

presided over his evidentiary hearing on March 23, 2011. As post-conviction proceedings

are civil in nature, Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007), reh’g denied,

Frazier was required to file his motion no later than ten days after pleadings closed. Frazier

filed his motion eighteen days after the pleadings closed, and therefore his motion was not

timely and was properly denied. Accordingly, the post-conviction court did not err when it

denied his Motion for Seated Judge to Preside.

       2.     Denial of Successive Petition

       Post-conviction proceedings afford petitioners a limited opportunity to raise issues

unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

(Ind. 2002). As post-conviction proceedings are civil in nature, the petitioner must prove his

grounds for relief by a preponderance of the evidence. Id. A party appealing a negative post-

conviction judgment must establish that the evidence is without conflict and, as a whole,

unmistakably and unerringly points to a conclusion contrary to that reached by the post-


                                              4
conviction court. Id. 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 do not defer to

the court’s legal conclusions, but “the 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.” Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citation

omitted), cert denied, 530 U.S. 830 (2001).

       A petitioner is entitled to only one post-conviction opportunity to raise the issue of

ineffective assistance of counsel. Daniels v. State, 741 N.E.2d 1177, 1185 (Ind. 2001).

Claims of ineffective assistance already decided adversely to the petition are barred in

successive post-conviction proceedings as res judicata, which prevents the re-litigation of

issues. Matheney v. State, 834 N.E.2d 658, 662 (Ind. 2005). The doctrine of res judicata

does not bar an action if “the initial decision was clearly erroneous and would work manifest

injustice,” Wallace v. State, 820 N.E.2d 1261, 1263 (Ind. 2005), or if there is newly-

discovered evidence. Daniels, 741 N.E.2d at 1185.

       Frazier’s initial petition for post-conviction relief was denied on October 20, 2003. In

his appellate brief, Frazier has not explained why the 2003 denial was “clearly erroneous” or

created “manifest injustice.” See Wallace, 820 N.E.2d at 1263. Nor does his argument rely

on newly discovered evidence. Therefore, all of the arguments he raised in his successive

petition for post-conviction relief are precluded by res judicata.

                                      CONCLUSION

       The trial court did not err when it denied Frazier’s Motion for a Seated Judge to

                                              5
Preside because his motion was not timely. Additionally, the claims he raised in his petition

for successive post-conviction relief were res judicata. Accordingly, we affirm the denial of

Frazier’s petition for successive post-conviction relief.

       Affirmed.

ROBB, C.J., and PYLE, J., concur.




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