                                                            FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                          Feb 21 2012, 9:27 am
any court except for the purpose of
establishing the defense of res judicata,
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APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

TONY V. HAWKINS                                 GREGORY F. ZOELLER
Pendleton, Indiana                              Attorney General of Indiana

                                                J.T. WHITEHEAD
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TONY V. HAWKINS,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 56A05-1110-PC-524
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE NEWTON SUPERIOR COURT
                         The Honorable Daniel J. Molter, Judge
                             Cause No. 56D01-0211-FA-2



                                     February 21, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Tony V. Hawkins, pro se, appeals the post-conviction court‟s denial of his petition

for post-conviction relief. Hawkins raises three issues which we revise and restate as:

       I.        Whether the post-conviction court erred in denying Hawkins‟s
                 petition for relief based upon his argument that the State improperly
                 destroyed evidence; and

       II.       Whether Hawkins was denied the effective assistance of trial
                 counsel.

We affirm.

       The relevant facts follow. In November 2002, the State charged Hawkins with

dealing in cocaine as a class A felony and dealing in marijuana as a class D felony.1 On

November 22, 2002, Harry Falk entered an appearance on behalf of Hawkins.                 On

December 4, 2002, Hawkins filed a motion to produce evidence. On December 9, 2002,

the State filed a Notice of Production of Discovery Documents with Proof of Service.2

       On December 31, 2002, the State filed a motion to amend the charging

information alleging that Hawkins was an habitual offender. On October 1, 2004, the

State and Hawkins entered into a plea agreement in which Hawkins pled guilty to dealing

in cocaine as a class A felony. The court accepted the plea agreement and ordered the

offense of dealing in marijuana and the habitual offender enhancement dismissed. The

court sentenced Hawkins to thirty years in the Department of Correction.

       On February 14, 2005, Hawkins filed a petition for post-conviction relief. On

March 9, 2005, Kelly A. Kelly entered an appearance on behalf of Hawkins. On April 4,


       1
           The record does not contain the charging information.
       2
           The record does not contain a copy of the State‟s Notice.

                                                     2
2006, the State moved to destroy evidence, and the court granted the motion.             On

December 13, 2007, Kelly filed a withdrawal of appearance which the court granted.

       On March 13, 2008, Hawkins filed a motion to receive telephone records. A CCS

entry dated March 13, 2008, states: “CTS Dockets [sic] does not contain records,

therefore CT is unable to provide deft w/relief sought.” Appellant‟s Appendix at 8.

       On September 24, 2010, Hawkins filed a motion for production of documents

requesting phone records, “TAPES that were recorded during the controlled buys,”

criminal records of the informants, surveillance tapes, lab records, the arrest record of his

codefendant, and any agreement involving the prosecutor and the codefendant.

Appellant‟s Appendix at 129. After a hearing, the court determined that Hawkins sought

production of documents that had been destroyed pursuant to rules of retention and

denied Hawkins‟s motion.

       On February 25, 2011, Hawkins filed an amended petition for post-conviction

relief. Hawkins argued that the State improperly withheld certain exculpatory evidence,

that “IF not for trial counsel INEFFECTIVENESS [he] would never enter into plea –

agreement with NEWTON COUNTY PROSECUTORS OFFICE,” that his plea was

“UNINTELLIGENTLY made under duress,” and that the exhibits attached to his petition

showed that had he “sought to put the states [sic] case to an adversarial testing petitioner

would of [sic] faced a habitual offender enhancement.” Id. at 105.

       On August 31, 2011, the court held a hearing on Hawkins‟s petition. During the

hearing, J. Edward Barce, the prosecuting attorney at the time charges were filed against

Hawkins, testified that Hawkins “was eligible to be a habitual offender because of prior

                                             3
felony convictions,” but he did not remember any details about Hawkins‟s record.

Transcript at 24. Barce also stated that there was no reason to believe that he strayed

from procedure when he handled Hawkins‟s enhancement. With respect to the order to

destroy evidence, Barce testified: “I‟ve never seen an order to the effect that we wanted

to destroy any paperwork or anything like that; it‟s to get rid of the drugs.” Id. at 32.

       Hawkins‟s trial counsel, Falk, testified that the State had Hawkins “cold” on the

charge of dealing in cocaine as an A felony and the charge of being an habitual offender

was not a consideration. Id. at 43. Falk also testified that there was a concern that

informing the prosecutor of an erroneous habitual offender charge would result in further

convictions being discovered by the prosecutor. During the direct examination of Falk by

Hawkins, the court stated:

              Mr. Hawkins, I‟m going to set this matter over to allow you an
       opportunity to prepare yourself on how to properly examine witnesses and
       such and such. The Court can take no more leeway with you at this point.
       You are just not following the rules of procedure. I have tried to help you
       in the interest of fairness, perhaps even rephrased your questions for you.
       Sometimes you are testifying, sometimes you‟re not. You are putting
       things in that are not in evidence, you are ignoring the answers of the
       witnesses and I do not believe under basic due process . . . .

Id. at 45. After some discussion, Hawkins stated, “Can we just end it here,” and rested.

Id. at 46.

       On September 19, 2011, the court entered an order denying Hawkins‟s petition for

post-conviction relief. Specifically, the order stated:

                                  FINDINGS OF FACT

                                          *****


                                              4
That during the hearings on [Hawkins‟s] Petition for Post-Conviction
Relief, evidence was presented to the trial court that J. Edward Barce, who
was the Newton County Prosecuting Attorney at the time the charges were
filed in this matter, took reasonable steps to research the underlying charges
that were used to support the habitual offender enhancement that was filed
against [Hawkins] in this matter and to make sure that [Hawkins] was the
individual charged in the underlying cases.

The State of Indiana, through the office of the Newton County Prosecuting
Attorney never undertook any actions to mislead [Hawkins] or to create any
type of false illusion in the mind of [Hawkins] when filing the charges or
the habitual offender enhancement in this case.

That consistent with its longstanding practice, the State of Indiana through
the office of the Newton County Prosecutor turned over all appropriate
discovery material to [Hawkins].

That [Hawkins] alleged in his Petition for Post-Conviction Relief that his
trial counsel‟s performance was deficient because of his handling of the
habitual offender enhancement filed in this matter insofar as he failed to file
a motion to dismiss, motion to suppress or any other pleading challenging
the validity of the habitual offender enhancement.

[Hawkins] alleges that the State of Indiana through the Prosecuting
Attorney sought and obtained from the Court, an order to destroy evidence
used in the prosecution of [Hawkins] notwithstanding the likelihood that
[Hawkins] might later seek post conviction relief for which such evidence
could prove material. In fact, the State of Indiana sought permission only
to destroy the actual illicit drugs and not evidence related to the
commission of crimes or issues of predisposition to commit crimes. The
State of Indiana argued laches applies because the passage of time and
fading memories has resulted in the inability of various law enforcement
officials to accurately recall specific events of otherwise routine drug
transactions so long after the fact. The Court finds that laches should
apply.

[Hawkins] alleged in his Petition for Post-Conviction Relief that trial
counsel should have made him aware of the fact that he could not have
been found to be a habitual offender based on the pleadings filed in this
matter by the State of Indiana since one of [Hawkins‟s] convictions, as
alleged by the State of Indiana to support the habitual offense enhancement
was in error.


                                      5
       In fact, trial counsel did so advise [Hawkins] and discussed with him, the
       problems that the State of Indiana would have in trying to prove the
       allegations made in the habitual offender enhancement that was filed in this
       case.

       That trial counsel informed [Hawkins] that it would not be in his best
       interest to bring to the Prosecutor‟s attention any error contained in the
       habitual offender enhancement since it was likely that the State of Indiana
       would simply correct the errors in the habitual offender enhancement and
       move to amend the habitual offender count to reflect true and accurate
       unrelated felony convictions.

                               CONCLUSIONS OF LAW

                                         *****

       There is not sufficient evidence from which this Court can conclude that the
       State of Indiana, either willfully or inadvertently, suppressed any material
       evidence and therefore the Court finds that [Hawkins] has failed to show
       that there was any type of Brady violation.

                                         *****

       There is not sufficient evidence from which this Court can conclude that the
       performance of trial counsel fell below the norms of prevailing professional
       conduct.

       [Hawkins] was not denied effective assistance of counsel in this matter.

       That based upon the findings of fact and conclusions of law set forth herein,
       the Petition for Post-Conviction Relief, as amended by [Hawkins] in this
       matter should be denied.

Appellant‟s Appendix at 134-137.

       Before discussing Hawkins‟s allegations of error, we note that although Hawkins

is proceeding pro se, such litigants are held to the same standard as trained counsel and

are required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct.

App. 2004), trans. denied. We also note the general standard under which we review a

post-conviction court‟s denial of a petition for post-conviction relief. The petitioner in a
                                              6
post-conviction proceeding bears the burden of establishing grounds for relief by a

preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind.

Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the

petitioner stands in the position of one appealing from a negative judgment. Fisher, 810

N.E.2d at 679. On review, we will not reverse the judgment unless the evidence as a

whole unerringly and unmistakably leads to a conclusion opposite that reached by the

post-conviction court. Id. Further, the post-conviction court in this case entered findings

of fact and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6).

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, we accept findings of fact unless clearly

erroneous, but we accord no deference to conclusions of law. Id. The post-conviction

court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.

                                             I.

       The first issue is whether the post-conviction court erred in denying Hawkins‟s

petition for relief based upon his argument that the State improperly destroyed evidence.

Hawkins argues that “[t]his case depends on Laboratory Reports, Covert Audio and

Video Recordings, Testimony of Confidential informants, Drug Task Force Agents and

their documentations, along with telephone records showing amounts of calls made

during investigation.” Appellant‟s Brief at 7. Hawkins argues that “[w]hen the state

destroyed or lost all of the documents pertaining to this cause, it left the petitioner

without the proper documentation to support his issues filed in his” petition for post-

                                             7
conviction relief. Id. at 7. Hawkins further argues that “[a]ny discarded or destroyed

evidence is a violation of the Brady law.” Id. at 10 (citing Brady v. Maryland, 373 U.S.

83, 83 S. Ct. 1194 (1983)). Hawkins alleges that “[t]hese documents were exculpatory in

nature.” Id. Hawkins also argues that “prosecutorial misconduct should be applied for

the mishandling of such vital dockets, both for the state and the petitioner in this cause.”

Id. at 7. The State argues that the prosecutor complied with all discovery orders and that

the record reveals that the motion to destroy evidence “would have only applied to the

actual drugs themselves and not any peripheral paperwork.” Appellee‟s Brief at 10.

       In Brady v. Maryland, the United States Supreme Court held that “the suppression

by the prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the good

faith of the prosecution.” 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-1197 (1963). “To

prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed

evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence

was material to an issue at trial.” Minnick v. State, 698 N.E.2d 745, 755 (Ind. 1998)

(citing Brady, 373 U.S. at 87, 83 S. Ct. 1194), reh‟g denied, cert. denied, 528 U.S. 1006,

120 S. Ct. 501 (1999). “Evidence is „material‟ only if there is a „reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding would

have been different.‟” Id. (quoting United States v. Bagley, 473 U.S. 667, 685, 105 S. Ct.

3375, 3385 (1985)). A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Bagley, 473 U.S. at 682, 105 S. Ct. at 3383.



                                             8
        The Indiana Supreme Court has held that Brady does not apply when evidence is

disclosed before trial. See Noojin v. State, 730 N.E.2d 672, 676 n.1 (Ind. 2000) (holding

that Brady had no application where the content of the alleged exculpatory evidence was

revealed through testimony at trial). Here, Hawkins filed a motion to produce evidence

on December 4, 2002, which requested numerous items including a copy of all written

and recorded statements of persons whom the prosecuting attorney intended to call as

witnesses, written reports, lab reports, and physical evidence. On December 9, 2002, the

State filed a Notice of Production of Discovery Documents with Proof of Service, and, as

previously noted, the record does not contain a copy of the State‟s notice. Based upon

the record, we cannot say that the State failed to provide Hawkins with the items he

mentions in his petition for post-conviction relief. Even assuming that Brady applies in

this context as to some of the items, we cannot say based upon the record that Hawkins

established that the prosecution suppressed evidence, that the evidence was favorable to

the defense, and that the evidence was material to an issue at trial.3

                                                    II.

        The next issue is whether Hawkins was denied the effective assistance of trial

counsel. To prevail on a claim of ineffective assistance of counsel, a petitioner must

demonstrate both that his counsel‟s performance was deficient and that the petitioner was

prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind.

2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),


        3
           Because we conclude that Hawkins has not established that the prosecution suppressed
evidence, that the evidence was favorable to the defense, and that the evidence was material to an issue at
trial, we need not address Hawkins‟s argument regarding laches.
                                                    9
reh‟g denied), reh‟g denied, cert. denied, 534 U.S. 830, 122 S. Ct. 73 (2001). A counsel‟s

performance is deficient if it falls below an objective standard of reasonableness based on

prevailing professional norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). To

meet the appropriate test for prejudice, the petitioner 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. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).

Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at 824.

Most ineffective assistance of counsel claims can be resolved by a prejudice inquiry

alone. Id.

       When considering a claim of ineffective assistance of counsel, a “strong

presumption arises that counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Morgan v. State, 755

N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel‟s performance is presumed effective, and a

defendant must offer strong and convincing evidence to overcome this presumption.”

Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). Evidence of isolated poor strategy,

inexperience, or bad tactics will not support a claim of ineffective assistance of counsel.

Clark v. State, 668 N.E.2d 1206, 1211 (Ind. 1996), reh‟g denied, cert. denied, 520 U.S.

1171, 117 S. Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986).

       Hawkins argues that his attorney‟s performance “fell below standards when he

failed to put the states [sic] charge of Habitual Offender to a meaning to adversarial

                                            10
testing.” Appellant‟s Brief at 11. Hawkins argues that “Attorney Falk knew for some

time that one of the underlying felonies used to file the habitual act on petitioners [sic]

did not belong to the petitioner but did not challenge it . . . .” Id. Hawkins argues that

“[h]ad the Habitual not been filed against the petitioner to motivate a 30 year plea, the out

come [sic] of the case could have been different.” Id. at 12. Hawkins argues that “[t]he

State by using case #95-CR-5501-01 clearly made an error” as that cause number

“belongs to a black male born in 1974, petitioner is Caucasian and born in 1959.” Id.

Hawkins argues that his attorney “knew of this error and let the state move forward with

this error in filing of the habitual offender.” Id.

       The State argues that Hawkins cannot show a reasonable probability that the

outcome would have been different had he gone to trial and challenged the habitual

offender charge along with the A felony. The State also argues that there was “no reason

to bring to the State‟s attention the fact that it could not eventually prove the habitual

offender enhancement.” Appellee‟s Brief at 13.

       Because Hawkins was convicted pursuant to a guilty plea, we must analyze his

claims under Segura v. State, 749 N.E.2d 496 (Ind. 2001). In Segura, the Indiana

Supreme Court held:

       Whether viewed as ineffective assistance of counsel or an involuntary plea,
       the postconviction court must resolve the factual issue of the materiality of
       the bad advice in the decision to plead, and postconviction relief may be
       granted if the plea can be shown to have been influenced by counsel‟s error.
       However, if the postconviction court finds that the petitioner would have
       pleaded guilty even if competently advised as to the penal consequences,
       the error in advice is immaterial to the decision to plead and there is no
       prejudice.


                                              11
749 N.E.2d at 504-505. Thus, it is immaterial whether Hawkins‟s claim is characterized

as an involuntary plea or ineffective assistance of counsel. See Willoughby v. State, 792

N.E.2d 560, 563 (Ind. Ct. App. 2003) (citing Segura and holding that it was immaterial

whether the petitioner‟s claim was characterized as an involuntary plea or ineffective

assistance of counsel because, under either standard, the petitioner must demonstrate that

the intimidation resulting from his trial counsel‟s failure to inform him of the single

larceny rule was material to his decision to plead guilty), trans. denied.

        Segura categorizes two main types of ineffective assistance of counsel cases.

Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). The first category relates to “an

unutilized defense or failure to mitigate a penalty.” Willoughby, 792 N.E.2d at 563

(citing Segura, 749 N.E.2d at 507).             The second category relates to “an improper

advisement of penal consequences,” and this category has two subcategories: (1) “claims

of intimidation by exaggerated penalty or enticement by an understated maximum

exposure;” or (2) “claims of incorrect advice as to the law.” Id. (citing Segura, 749

N.E.2d at 504-505, 507). Hawkins claim falls under the first category. 4 In Segura, the

Court held that “in the case of claims related to a defense or failure to mitigate a penalty,

it must be shown that there is a reasonable probability that a more favorable result would

have obtained in a competently run trial.” 749 N.E.2d at 507.

        During the hearing, Hawkins‟s trial counsel testified as follows:


        4
           At one point, Hawkins states that his attorney “failed to file the correct motions to argue the
habitual, leaving the petitioner with the assumption he could get as high as 80 years in prison which is
false information.” Appellant‟s Brief at 12. However, at the hearing, Hawkins stated to his trial counsel:
“You told me that I was not habitual eligible.” Transcript at 42. Further, the central argument in
Hawkins‟s brief appears to be that his trial counsel failed to inform the prosecutor that the habitual
offender charge was based on erroneous convictions.
                                                   12
       Tony, you didn‟t plead guilty to the habitual. You told me you were not
       guilty of it, so if you‟re not guilty of it then fine. And it didn‟t matter to me
       because you pled guilty to the A felony for which you admitted to me you
       were guilty.

                                          *****

       There was a videotape of you using the cocaine that you were selling
       moments before Officer Whaley I believe tackled you like a linebacker and
       then incarcerated you. So their ability to prove you guilty of the A felony
       was not a real far fetch for me and I don‟t think it was a far fetch for you
       either, Tony. The habitual they couldn‟t have proven it, so that really
       wasn‟t an issue. But the A felony they had you cold. So did it behoove
       you to tell the prosecutor no, it really didn‟t matter because you weren‟t
       considering it as even a consideration for a sentence.

                                          *****

       Tony, the habitual was dismissed. They didn‟t pursue it. And that neither
       one of us considered that the State would prevail on the habitual, it wasn‟t
       really considered.

                                          *****

       Tony, you and I both knew they would not prevail on the habitual charge,
       the habitual enhancement, so that did not have any basis. But there was
       considerable concern that they may modify that to incorporate some records
       that may not have been on your NCIC sheet that you indicated to me but I
       don‟t remember other than it was something I believe in Michigan, that
       they may possibly locate that conviction. I don‟t even remember what it is,
       Tony, and it may not be in Michigan. I don‟t know why I remember that
       but my bottom line is it didn‟t behoove you because you and I knew they
       would not prevail on that charge as it was filed so that never was
       considered.

Transcript at 43-45.

       Based upon the record, we cannot say that Hawkins has demonstrated that there is

a reasonable probability that a more favorable result would have been obtained at trial or

that he was prejudiced by his trial counsel‟s performance.


                                              13
       For the foregoing reasons, we affirm the post-conviction court‟s denial of

Hawkins‟s petition for post-conviction relief.

       Affirmed.

MAY, J., and CRONE, J., concur.




                                            14
