MEMORANDUM DECISION
                                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          Feb 16 2018, 7:37 am

regarded as precedent or cited before any                                           CLERK
                                                                                Indiana Supreme Court
court except for the purpose of establishing                                       Court of Appeals
                                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Ryan Patrick Rucker                                      Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ryan Patrick Rucker,                                     February 16, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         35A02-1610-PC-2461
        v.                                               Appeal from the Huntington
                                                         Circuit Court
State of Indiana,                                        The Honorable Thomas M. Hakes,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         35C01-1208-PC-11



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018         Page 1 of 18
[1]   Ryan Rucker appeals the post-conviction court’s denial of his petition for post-

      conviction relief, arguing that the post-conviction court erred by refusing to

      issue subpoenas or admit certain evidence and by finding that Rucker did not

      receive the ineffective assistance of counsel. Finding no error, we affirm.


                                                     Facts
[2]   On October 18, 2011, Rucker was charged with child molesting. On March 12,

      2012, pursuant to a plea agreement, Rucker pleaded guilty to Class A felony

      child molesting. The plea agreement stated that Rucker was satisfied with his

      first trial counsel’s representation and that counsel had “done everything” that

      Rucker asked him to do and had “not done anything” that Rucker had asked

      him “not to do.” Appellant’s App. Vol. III p. 49. Rucker also admitted that the

      facts in the charging information and probable cause affidavit “are true and

      constitute a factual basis for [his] plea of guilty.” Id. In the plea agreement,

      Rucker stated that he knew that the trial court would not accept a guilty plea

      from anyone who claimed to be innocent, that he did not make a claim of

      innocence, and that he was guilty of the crime to which he was pleading guilty.


[3]   A guilty plea hearing took place on March 12, 2012, during which Rucker

      admitted that while staying overnight at his friends’ home, he entered the

      bedroom of their eight-year-old daughter, approached her while she was asleep,

      pulled down her underwear, and licked her vagina. When the child told him to

      stop, Rucker left the room. The trial court found that there was a factual basis




      Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 2 of 18
      for Rucker’s guilty plea and that his guilty plea was made freely and

      voluntarily.


[4]   On March 20, 2012, Rucker’s first trial counsel moved to withdraw his

      appearance. On March 21, 2012, Rucker filed several motions, including a

      motion to withdraw his guilty plea. On March 26, 2012, the trial court denied

      Rucker’s motions, granted his first trial counsel’s motion to withdraw, and

      appointed Rucker’s second trial counsel.


[5]   On April 23, 2012, Rucker filed a second motion to withdraw his guilty plea. A

      hearing on his second motion took place on May 7, 2012, during which Rucker

      stated that he felt he had been “unduly influenced” when he had admitted to

      the factual basis as part of his guilty plea. Appellant’s App. Vol. V p. 44.

      Rucker explained that when he was offered the plea agreement, he was told that

      if the case went to trial, he would likely lose and could be sentenced to fifty

      years. The trial court asked Rucker how that unduly influenced him, to which

      Rucker replied, “The way it was proposed to me I suppose your honor. I felt

      compelled . . . .” Id. at 49.


[6]   On May 10, 2012, the trial court denied Rucker’s motion. On May 21, 2012, a

      sentencing hearing took place during which the trial court accepted Rucker’s

      guilty plea and sentenced him to twenty-five years imprisonment. On the day

      of the sentencing hearing, Rucker and his second trial counsel talked about the

      possibility of post-conviction relief. Counsel suggested that Rucker should seek

      post-conviction relief instead of a direct appeal of the denial of his motion to


      Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 3 of 18
      withdraw the guilty plea. On June 6, 2012, Rucker’s second trial counsel filed a

      motion to withdraw his appearance; the trial court granted this motion the

      following day.


[7]   On July 9, 2012, Rucker wrote a letter to his second trial counsel, asking why

      counsel had suggested that Rucker pursue post-conviction relief rather than a

      direct appeal and requesting relevant documents and clarification of counsel’s

      suggestions about post-conviction remedies. Rucker also asked counsel how

      long Rucker could wait before filing a belated appeal. On July 19, 2012,

      Rucker’s second trial counsel replied that Rucker had a better chance of success

      with a petition for post-conviction relief. Counsel explained that because

      Rucker had pleaded guilty, the only issue that Rucker could raise on direct

      appeal was that the trial court erred by denying his motion to withdraw his

      guilty plea. Counsel also told Rucker that to pursue a belated appeal, Rucker

      would have to be diligent in filing it within a reasonable amount of time.


[8]   On August 23, 2012, Rucker filed a petition for post-conviction relief and was

      appointed counsel. Two years later, on August 28, 2014, that counsel filed a

      motion to withdraw; the next day, the post-conviction court granted the

      motion.


[9]   On November 17, 2014, Rucker filed a pro se motion to amend his petition for

      post-conviction relief. On November 19, 2014, the post-conviction court

      directed Rucker to submit evidence by affidavit. On January 6, 2015, Rucker




      Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 4 of 18
       filed a second motion to amend the petition for post-conviction relief; the next

       day, the post-conviction court granted permission to amend the petition.


[10]   On February 6, 2015, Rucker filed a final amended petition for post-conviction

       relief. On March 4, 2015, Rucker filed an affidavit in support of his amended

       petition and a “List of Affidavit Evidence.” Appellant’s App. Vol. II p. 5. On

       March 31, 2015, the State filed a motion to strike Rucker’s exhibits and a

       motion to strike portions of his affidavit. On April 22, 2015, Rucker filed an

       amended affidavit in support of his petition. On April 30, 2015, the post-

       conviction court granted the State’s motions.


[11]   On April 13, 2015, Rucker filed a petition for permission to file a belated notice

       of appeal of the denial of his 2012 motion to withdraw his guilty plea. On

       August 26, 2015, the trial court denied Rucker’s petition to file a belated notice

       of appeal. Rucker then filed a direct appeal from that denial, arguing that the

       trial court erred by finding that Rucker had not diligently pursued a direct

       appeal of the denial of his motion to withdraw his guilty plea. We affirmed in a

       memorandum decision. Rucker v. State, No. 35A05-1509-CR-01448, *1 (Ind.

       Ct. App. Apr. 7, 2016), reh’g denied, trans. denied.


[12]   On April 27, 2016, the post-conviction court scheduled an evidentiary hearing.

       On June 22, 2016, Rucker filed a request for the issuance of four subpoenas for

       the evidentiary hearing. On June 27, 2016, the post-conviction court denied the

       request, noting that Indiana Trial Rule 45 “was not properly followed.”

       Appellant’s App. Vol. II p. 9. During the July 20, 2016, evidentiary hearing,


       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 5 of 18
       Rucker acknowledged that he had not made a claim of innocence when he had

       pleaded guilty and stated that he had lied under oath at his guilty plea hearing.

       He also testified that he thought that, by pleading guilty, he was “doing the

       chivalry thing.” PCR Tr. p. 39. On September 27, 2016, the post-conviction

       court denied Rucker’s petition for post-conviction relief. Rucker now appeals.


                                       Discussion and Decision
[13]   Rucker makes several claims on appeal, which we consolidate and restate as:

       whether the post-conviction court erred by denying his requests to subpoena

       several witnesses, by refusing to admit certain evidence, and by finding that

       Rucker did not receive the ineffective assistance of counsel.1


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

       grounds for relief by a preponderance of the evidence. 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.




       1
         Rucker also asserts that his counsel failed to advise him of the penal consequences of his guilty plea, namely
       that he would automatically be classified as a sexual violent predator and that he would be ineligible for
       sentence modification, and that the trial court erred by failing to advise him that he could appeal the denial of
       his motion to withdraw his guilty plea, failing to advise him that he would be classified as a sexually violent
       predator, and by accepting an “illusory plea.” Appellant’s Br. p. 41-46. Rucker did not raise these issues in
       his petition for post-conviction relief; therefore, he has waived these issues on appeal. See Allen v. State, 749
       N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for post-conviction relief may not be raised
       for the first time on post-conviction appeal.”).
       Rucker also states that the post-conviction court erred by ordering him to tender fees as an indigent,
       incarcerated litigant. Because he offers no support for this statement, we decline to address it. See Smith v.
       State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal
       where the party fails to develop a cogent argument or provide adequate citation to authority and portions of
       the record.”) (citing Ind. Appellate Rule 46(A)(8)(a)).

       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018            Page 6 of 18
       Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006). 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.


                                               I. Subpoenas
[15]   Rucker contends that the post-conviction court erred by denying his subpoena

       requests for both of his attorneys and for Christina Wood, a witness.2 Indiana

       Post-Conviction Rule 1(9)(b) provides in relevant part that


               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.


       Thus, the post-conviction court has discretion whether to grant or deny a

       petitioner’s request for a subpoena. Johnson v. State, 832 N.E.2d 985, 994 (Ind.

       Ct. App. 2005). Subpoenas may be served “at any place within the state.” Ind.

       Trial Rule 45(E). Ordinarily, an Indiana court cannot “compel the attendance



       2
        In addition, Rucker contends that the post-conviction court erred by denying his subpoena request for
       Steven Adang, who administered his polygraph test. Rucker offers no argument regarding this particular
       subpoena. Therefore, we decline to address the issue.



       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018      Page 7 of 18
       of an out-of-state witness over whom the court does not have jurisdiction.”

       Collins v. State, 14 N.E.3d 80, 84 (Ind. Ct. App. 2014). “However, ‘when

       permitted by the laws of the United States, this or another state . . . the court

       upon proper application and cause shown may authorize the service of a

       subpoena outside the state in accordance with and as permitted by such law.’”

       Id. (quoting T.R. 45(E)).


[16]   The post-conviction court denied Rucker’s requests because Trial Rule 45 “was

       not properly followed.” Appellant’s App. Vol. II p. 9. In Rucker’s requests for

       subpoenas, he provided out-of-state addresses; the requests indicated that his

       first trial counsel lived in Michigan, his second trial counsel lived in Nebraska,

       and Wood lived in Minnesota. Appellant’s App. Vol. IX p. 22, 25, 28. Because

       these three people lived in different states, the post-conviction court would have

       needed cause to issue the subpoenas. The cause that Rucker provided was

       inappropriate—he cited to Indiana Code section 35-37-5-2 regarding the

       Uniform Act to Secure the Attendance of Witnesses From Outside the State in

       Criminal Proceedings. As the title indicates, however, this statute applies to

       summoning witnesses from other states to testify in a grand jury or criminal

       proceeding. Ind. Code § 35-37-5-1. But a post-conviction proceeding is civil,

       not criminal, in nature. Roberson v. State, 982 N.E.2d 452, 455 (Ind. Ct. App.

       2013). Accordingly, Rucker did not show cause that would authorize the post-

       conviction court to issue subpoenas for these three out-of-state witnesses.

       Rucker’s argument on this basis is unavailing.




       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 8 of 18
                                  II. Admission of Evidence
[17]   Rucker next argues that the post-conviction court erred by not admitting certain

       evidence. Specifically, the post-conviction court found that letters and emails

       written by Rucker, Rucker’s attorneys, and Rucker’s friend April Suchy, and

       affidavits from Rucker and Rucker’s father, constituted inadmissible hearsay.


[18]   The admission or exclusion of evidence is within the post-conviction court’s

       sound discretion. Badelle v. State, 754 N.E.2d 510, 521 (Ind. Ct. App. 2001).

       “Hearsay” is a statement, other than one made by the declarant while testifying

       at the trial or hearing, offered into evidence to prove the truth of the matter

       asserted. Ind. Evidence Rule 801(c). Hearsay is generally not admissible unless

       it falls within one of the hearsay exceptions. See Evid. R. 802.


[19]   Rucker first argues that letters that he and his attorneys wrote and emails that

       his first attorney wrote to the prosecutor were admissible because they fall

       under the business records exception to the hearsay rule. This exception

       includes:


               A record of an act, event, condition, opinion, or diagnosis if:


                        (A) the record was made at or near the time by—or from
                        information transmitted by—someone with knowledge;


                        (B) the record was kept in the course of a regularly
                        conducted activity of a business, organization, occupation,
                        or calling, whether or not for profit;



       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 9 of 18
                        (C) making the record was a regular practice of that
                        activity;


                        (D) all these conditions are shown by the testimony of the
                        custodian or another qualified witness, or by a certification
                        that complies with Rule 902(11) or (12) or with a statute
                        permitting certification; and


                        (E) neither the source of information nor the method or
                        circumstances of preparation indicate a lack of
                        trustworthiness.


       Evid. R. 803(6). The post-conviction court found that letters written in the

       course of legal representation about legal opinions did not constitute records

       kept in the course of regularly conducted business activity. We agree that the

       evidence Rucker wanted to admit does not meet the requirements set forth in

       this exception—he did not lay a proper foundation for the documents as

       required by Rule 803(6)(D). On appeal, Rucker states that, following his

       hearing for his petition for post-conviction relief, he obtained certification from

       each attorney’s office showing that the documents he submitted were created

       during the course of regularly conducted business. However, because these

       certifications were not offered at the post-conviction hearing, they have no

       impact on the post-conviction court’s ruling or on our analysis. The post-

       conviction court did not err by declining to admit this evidence.


[20]   Rucker next argues that the post-conviction court erred by not admitting

       affidavits from his father and from himself and a letter from his long-time friend

       April Suchy because the documents fall under the exception to the hearsay rule

       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 10 of 18
       for a statement of personal or family history. This exception includes a

       statement about


                (A) the declarant’s own birth, adoption, legitimacy, ancestry,
               marriage, divorce, relationship by blood or marriage, or similar
               facts of personal or family history, even though the declarant had
               no way of acquiring personal knowledge about that fact; or


               (B) another person concerning any of these facts, as well as
               death, if the declarant was related to the person by blood,
               adoption, or marriage or was so intimately associated with the
               person's family that the declarant's information is likely to be
               accurate.


       Evid. R. 804(b)(4). The affidavit from Rucker’s father concerned Rucker’s legal

       representation and plea agreement; Rucker’s affidavit concerned his crime; and

       Suchy’s letter concerned Rucker’s relationship with Wood. None of this

       evidence constitutes a statement of personal or family history as outlined by

       Evidence Rule 804(b)(4). The post-conviction court did not err by not

       admitting this evidence.


                         III. Ineffective Assistance of Counsel
[21]   Rucker also asserts that he received the ineffective assistance of counsel because

       his first trial counsel did not call certain witnesses, permitted Rucker to take a

       polygraph test, and allowed him to plead guilty. He also argues that his second

       trial counsel was ineffective for advising him to forgo a direct appeal.




       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 11 of 18
[22]   A claim of ineffective assistance of counsel requires a showing that: (1)

       counsel’s performance was deficient by falling below an objective standard of

       reasonableness based on prevailing professional norms; and (2) counsel’s

       performance prejudiced the defendant such that “‘there is a reasonable

       probability that, but for counsel’s unprofessional errors, the result of the

       proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

       (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

       reasonable probability arises when there is a ‘probability sufficient to undermine

       confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

       2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

       prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

       Ct. App. 2012).


                                                A. Witness
[23]   Rucker contends that his first trial counsel failed to call Wood as a witness,

       despite the fact that, according to Rucker, Wood would have testified that

       Rucker was innocent. According to Rucker, Wood told counsel “that initially

       when she had been questioned about the events of that night she stated that she

       ‘hadn’t seen anything,’ purely because she ‘had her own things going on’ and

       that she ‘did not want to get involved.’” Appellant’s App. Vol. VI p. 5-6.

       Rucker also stated that Wood told his first trial counsel “that she had known

       Rucker for many years and did not believe that he was even capable of

       committing such a crime.” Id. at 6. It is apparent that Wood had little to no

       relevant or probative information, aside from a mere belief about Rucker’s

       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 12 of 18
       character, that would have corroborated his claim of innocence. Rucker’s first

       trial counsel could have reasonably concluded that Wood’s testimony would

       not have benefitted Rucker, and we will not second guess that strategic

       decision. The post-conviction court did not err by finding that Rucker did not

       receive the ineffective assistance of counsel on this basis.


                                          B. Polygraph Test
[24]   Next, Rucker argues that his first trial counsel was ineffective by recommending

       that he take a polygraph test and by not being present during the administration

       of the test. After Rucker’s first trial counsel suggested that Rucker take the

       polygraph test, Rucker told him that he had “no problem” doing so, but that he

       wanted to decide who would administer it. Appellant’s App. Vol. III p. 14.

       Before taking the polygraph test, Rucker signed a waiver form stating that he

       understood his rights to remain silent, to talk to a lawyer, to have a lawyer with

       him during questioning, and to stop answering questions at any time, and that

       he was willing to make a statement and answer questions without talking to a

       lawyer or having one present. Id. at 25. He also signed the polygraph consent

       form, thereby acknowledging that he could not be required to submit to a

       polygraph test and that he could terminate the test at any time, and requesting a

       test be administered to him. Id. at 27. Further, during Rucker’s evidentiary

       hearing on his petition for post-conviction relief, he testified that his first trial

       counsel had told him that he would not be present for the polygraph test. PCR

       Tr. p. 29-30.



       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 13 of 18
[25]   In short, Rucker knew that his counsel would not be present for the polygraph

       test, understood his rights, and still agreed to take the test. Counsel is not

       ineffective simply because he was not present during a polygraph exam,

       Williams v. State, 489 N.E.2d 594, 598 (Ind. Ct. App. 1986), nor is counsel

       ineffective merely because a defendant regrets agreeing to take a polygraph

       exam, Marsillett v. State, 495 N.E.2d 699, 707 (Ind. 1986). Moreover, Rucker

       offered no evidence to show that, but for taking the polygraph exam, there is a

       reasonable probability that he would have proceeded to trial rather than have

       pleaded guilty. In other words, he has shown no prejudice stemming from the

       polygraph test. The post-conviction court did not err by not finding ineffective

       assistance of counsel on this basis.


                                             C. Guilty Plea
[26]   Rucker also contends that his first trial counsel’s advice to enter a guilty plea

       amounted to the ineffective assistance of counsel. Specifically, he contends that

       counsel failed to prepare a defense based on his claim of innocence. “In order

       to establish that the guilty plea would not have been entered if counsel had

       performed adequately, the petitioner must show that a defense was overlooked

       or impaired and that the defense would likely have changed the outcome of the

       proceeding.” Segura v. State, 749 N.E.2d 496, 499 (Ind. 2001).


[27]   Rucker’s first trial counsel stated that he had discussed the facts of the case with

       Rucker, that he believed the plea agreement to be in Rucker’s best interest, and

       that he represented that there would be no advantage to Rucker if the case were


       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 14 of 18
       to proceed to trial. PCR Ex. B. Rather than overlooking a defense of

       innocence, Rucker’s counsel likely considered how a jury would evaluate the

       testimony of a child molestation victim, reasonably concluded that Rucker

       would face a strong probability of being convicted if the case went to trial, and

       determined that trying to secure as minimal a sentence as possible would be the

       best defense strategy. Under the plea agreement, Rucker was sentenced to

       twenty-five years; had he proceeded to trial, he would have faced a sentence of

       up to fifty years. This was a reasonable strategic decision that we will not

       second guess. Rucker did not establish that his counsel’s performance was

       deficient or prejudicial on this basis.


                          D. Advice Regarding Direct Appeal
[28]   Rucker argues that his second trial counsel failed to advise him that the trial

       court’s denial of his motion to withdraw his guilty plea was reviewable on

       direct appeal. However, Rucker acknowledges that his second trial counsel

       advised him in a July 19, 2012, letter that Rucker could have directly appealed

       the trial court’s denial of his request to withdraw his guilty plea. Appellant’s

       Br. p. 39. In that letter, counsel explained that


               There is no time limit, strictly speaking, on a belated appeal.
               You have to be diligent in pursuing it and file within a reasonable
               time. The rule is similar to the rule for filing PCR.


               The reason I recommended PCR to you was that because the
               judge accepted the plea, you waived your rights to a direct
               appeal. The only issue you could possibly have raised on a direct
               appeal was that the trial court denied your request to withdraw

       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 15 of 18
               the plea. You can still allege that the plea was improper at the
               PCR stage, and in fact I believe you have a better shot because
               PCR will give you plenty of opportunity to question [first trial
               counsel’s] tactics and to tell the judge every reason why your plea
               was not knowing and voluntary or, alternatively, based on
               ineffective representation. My fear was that if you tried to attack
               your plea comprehensively at the withdrawal stage, you might
               pass up a better chance to clear this up. My recommendation
               was based on what I thought was the best option as far as giving
               you a chance at a win.


               The cases you cite, when I last checked, apply to situations where
               during the guilty plea hearing itself, a person protests his own
               innocence. Thus, if at the plea when you initially agreed to the
               25 years, you turned around and said, for example, that you were
               just doing this because “your attorney told you” and you really
               did nothing wrong, the plea would be invalid. However, the fact
               that you came back later and said that you were not guilty does
               not mean that the judge must allow you to withdraw your plea.
               [For] whatever reason, the law treats it as two different
               situations.


       Appellant’s App. Vol. IV p. 11.


[29]   Despite this advice, Rucker did not request permission to file a belated appeal

       until August 13, 2015, more than three years after his second trial counsel wrote

       him the above letter. By that time, this Court found that Rucker had not been

       diligent in pursuing a belated direct appeal. Rucker, slip. op at *3. Thus,

       Rucker was unable to pursue a direct appeal not because of counsel’s

       performance but because he significantly delayed requesting one.




       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 16 of 18
[30]   Moreover, Rucker does not show that, had he appealed the trial court’s denial

       of his motion to withdraw his guilty plea, this Court would have found that the

       trial court erred in its ruling. “After a defendant pleads guilty but before a

       sentence is imposed, a defendant may motion to withdraw a plea of guilty.”

       Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001) (citing Ind. Code § 35-35-1-

       4(b)). The trial court must grant a defendant’s motion to withdraw his guilty

       plea if necessary to correct a manifest injustice. Id. The trial court must deny

       the defendant’s motion if withdrawal of the plea would substantially prejudice

       the State. Id. In all other cases, the trial court may grant the defendant’s

       motion for any fair and just reason. Id.


[31]   At the hearing on Rucker’s motion to withdraw his guilty plea, Rucker stated

       that he felt he had been “unduly influenced” when he had agreed to the facts

       stated in the factual basis when he had entered his guilty plea. Appellant’s App.

       Vol. V p. 44. Rucker explained that when he was offered the plea agreement,

       he was told that if the case went to trial, he would likely lose and could be

       sentenced to fifty years. The trial court asked Rucker how that unduly

       influenced him, to which Rucker replied, “The way it was proposed to me I

       suppose your honor. I felt compelled . . . .” Id. at 49.


[32]   The trial court was in the best position to determine whether withdrawing

       Rucker’s guilty plea was necessary to correct a manifest injustice or whether

       Rucker was simply experiencing a case of buyer’s remorse. At his guilty plea

       hearing, Rucker stated that his decision to plead guilty was his own free choice,

       and in his plea agreement, he stated that he was satisfied with his counsel’s

       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 17 of 18
       representation; that he had discussed the facts, circumstances, and possible

       defenses with counsel; and that his decision to plead guilty was made freely and

       voluntarily. Considering these circumstances, Rucker did not establish that

       withdrawal of his guilty plea was necessary to correct a manifest injustice, and

       the trial court did not err by denying his motion. Therefore, even if Rucker had

       filed a timely appeal on this issue, he likely would have been unsuccessful.

       Accordingly, he does not show that his counsel performed deficiently or that he

       was prejudiced by counsel’s advice regarding a direct appeal.


[33]   In sum, Rucker did not establish that he received the ineffective assistance of

       counsel.


[34]   The judgment of the post-conviction court is affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 35A02-1610-PC-2461 | February 16, 2018   Page 18 of 18
