Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                          Mar 13 2014, 6:55 am
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:

CAYLIN P. BLACK                                    GREGORY F. ZOELLER
Michigan City, Indiana                             Attorney General of Indiana

                                                   J.T. WHITEHEAD
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

CAYLIN P. BLACK,                                   )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )        No. 27A02-1212-PC-981
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                      APPEAL FROM THE GRANT SUPERIOR COURT
                     The Honorable Dana J. Kenworthy, Judge Pro Tempore
                               Cause No. 27D02-1203-PC-63



                                         March 13, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Caylin P. Black appeals the denial of his petition for post-conviction relief and raises

the following restated issues for our review:

       I.        Whether the post-conviction court erred when it denied several of
                 Black’s claims on res judicata grounds;

       II.       Whether the State committed a Brady1 violation by withholding
                 evidence; and

       III.      Whether newly discovered evidence warranted a new trial.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       The facts supporting Black’s convictions as set forth by this court on his direct

appeal are as follows:

       On September 25, 2007, the Grant County JEAN team drug task force
       conducted a controlled buy of cocaine from Black. Marion Police
       Department Detective Ross Allen was the lead detective, while Marion
       Police Department Detective Sergeant Mark Stefanatos and Grant County
       Sheriff’s Department Lieutenant Michael Andru also participated in the
       operation. They used a confidential informant, Maurice Rogers, to select the
       dealer. Rogers was working with the police in exchange for the dismissal of
       three [C]lass B felony cocaine delivery charges.

       The officers equipped Rogers with a camera and a listening device, searched
       him prior to the buy, provided him with five hundred dollars of buy money,
       and dropped Rogers off in Black’s neighborhood. Rogers had telephoned
       Black in advance to arrange the buy. Once there, Rogers met with Black,
       went inside Black’s home, gave him the buy money, and Black gave Rogers
       the cocaine. The cocaine weighed 6.94 grams. The transaction was recorded.

       The State charged Black with one count of dealing in cocaine as a [C]lass A
       felony and filed an habitual offender enhancement. A jury found Black
       guilty of dealing in cocaine as a [C]lass A felony, and the State dismissed the
       habitual offender enhancement. The trial court sentenced Black to a term of
       forty years executed.

       1
           Brady v. Maryland, 373 U.S. 83 (1963).

                                                    2
Black v. State, No. 27A04-0909-CR-501 (Ind. Ct. App. June 10, 2010).

       Black appealed his conviction on direct appeal, contending that his right to a speedy

trial was violated, that the State committed a Brady violation by failing to disclose Rogers’s

criminal history, that the trial court erroneously limited Black’s cross-examination of

Rogers, and that Black’s trial counsel was ineffective. This court affirmed Black’s

conviction and sentence in an unpublished opinion. Black filed a pro se petition for post-

conviction relief on March 23, 2012 and subsequent amended petitions on May 9, 2012

and May 29, 2012. He cited the following grounds for relief: (1) the State withheld

information regarding Rogers’s criminal record; (2) newly discovered evidence required a

new trial; (3) the trial court erroneously limited Black’s cross-examination of Rogers; (4)

trial counsel was ineffective for failing to object to certain evidence; and (5) Black’s right

to a speedy trial was violated. Appellant’s App. at 41-42. The post-conviction court denied

the petition for post-conviction relief. Black now appeals.

                             DISCUSSION AND DECISION

       Post-conviction proceedings do not afford the petitioner an opportunity for a super

appeal, but rather, provide the opportunity to raise issues that were unknown or unavailable

at the time of the original trial or the direct appeal. Ben-Yisrayl v. State, 738 N.E.2d 253,

258 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002); Wieland v. State, 848 N.E.2d 679, 681

(Ind. Ct App. 2006), trans. denied, cert. denied, 549 U.S. 1038 (2006). The proceedings

do not substitute for a direct appeal and provide only a narrow remedy for subsequent

collateral challenges to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for


                                              3
post-conviction relief bears the burden of proving the grounds by a preponderance of the

evidence. Ind. Post-Conviction Rule 1(5).

       When a petitioner appeals a denial of post-conviction relief, he appeals a negative

judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007), trans. denied. The

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

a conclusion contrary to that of the post-conviction court. Id. We will disturb a post-

conviction court’s decision as being contrary to law only where the evidence is without

conflict and leads to but one conclusion, and the post-conviction court has reached the

opposite conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

denied. The post-conviction court is the sole judge of the weight of the evidence and the

credibility of witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans.

denied. We accept the post-conviction court’s findings of fact unless they are clearly

erroneous, and no deference is given to its conclusions of law. Fisher, 878 N.E.2d at 463.

                            I. Claims Barred by Res Judicata

       Post-conviction procedures do not afford a petitioner with a super-appeal, and not

all issues are available. Loveless v. State, 896 N.E.2d 918, 920 (Ind. Ct. App. 2008) (citing

Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839 (2002)),

trans. denied. Rather, subsequent collateral challenges to convictions must be based on

grounds enumerated in the post-conviction rules. P-C.R. 1(1); Loveless, 896 N.E.2d at

920. If an issue was known and available, but not raised on direct appeal, it is waived.

Loveless, 896 N.E.2d at 920. If it was raised on appeal, but decided adversely, it is res

judicata. Id.

                                             4
       Black argues that the post-conviction court erred when it determined that his claim

regarding the trial court erroneously limiting his cross-examination of Rogers was barred

by res judicata. Although Black conceded that this issue was decided in his direct appeal,

he contends that the issue should be revisited because the previous decision was clearly

erroneous and would allow manifest injustice if it was allowed to stand. He, therefore,

asserts that this case falls within the narrowly defined exception to the doctrine of res

judicata, and we should again examine the issue. We disagree.

       On Black’s direct appeal, he raised the argument that the trial court had erred in

limiting his cross-examination of Rogers by not allowing him to question Rogers about any

specific sentence length he could have faced, and a panel of this court disagreed. He again

raised this issue in his petition for post-conviction relief, and the post-conviction court

correctly concluded that it was barred by res judicata. Black is correct that our Supreme

Court has stated that, “[a] court has the power to revisit prior decisions of its own or of a

coordinate court in any circumstance, although as a rule courts should be loathe to do so in

the absence of extraordinary circumstances such as where the initial decision was clearly

erroneous and would work manifest injustice.” State v. Huffman, 643 N.E.2d 899, 901

(Ind. 1994) (quotations omitted). However, we do not think that this is a case of such

extraordinary circumstances. Here, Black was merely prohibited from questioning Rogers

about any specific sentence length he may have faced prior to becoming a confidential

informant. He was still permitted to, and did, elicit testimony from Rogers that he faced

three Class B felony charges, “serious charges,” when he contracted with the State to work

as a confidential informant, that Rogers was doing what he had to do in order to avoid

                                             5
prison time, and that he “desperately” did not want to go to prison. Trial Tr. at 383. Rogers

testified that he is or was a heroin addict, and Black elicited the dates of three different

charges against Rogers for cocaine delivery or conspiracy to commit cocaine delivery.

Rogers also testified that he selected the dealer involved in the controlled buy. We,

therefore, do not find this to be a case with extraordinary circumstances such that the initial

decision was clearly erroneous and would work manifest injustice. The post-conviction

court did not err in concluding that this issue was barred by res judicata.2

                                          II. Brady Violation

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

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

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

faith or bad faith of the prosecution.” 373 U.S. 83, 87 (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.’” Bunch v. State, 964 N.E.2d 274, 298 (Ind. Ct. App. 2012) (quoting Minnick

v. State, 698 N.E.2d 745, 755 (Ind. 1998), cert. denied, 528 U.S. 1006 (1999)), trans.

denied. 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.

A reasonable probability is a probability sufficient to undermine confidence in the


        2
          We also note that Black raised two other issues in his petition for post-conviction relief that had
been previously decided on direct appeal and that were denied by the post-conviction court: (1) his right
to a speedy trial was violated; and (2) his trial counsel was ineffective. The post-conviction court deemed
both of these issues barred by res judicata. Although Black did not raise the denial of these issues in the
present appeal, we note that the post-conviction court correctly determined they were barred.

                                                     6
outcome. Id. (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). The State will

not be found to have suppressed material evidence if it was available to a defendant through

the exercise of reasonable diligence. Id. (citing Conner v. State, 711 N.E.2d 1238, 1246

(Ind. 1999), cert. denied, 531 U.S. 829 (2000)).       Favorable evidence includes both

exculpatory evidence and impeachment evidence. Id. at 297-98.

       Black argues that he was denied due process because the State committed a Brady

violation when it failed to disclose that Rogers had been convicted of theft in May 1999.

He contends that the State’s belated disclosure of this information denied him a fair trial

because the conviction could have been used to impeach Rogers’s credibility at trial. Black

asserts that the post-conviction court erred when it determined that he could have sought

the theft disposition information earlier through the exercise of due diligence and when it

denied relief on this claim.

       Initially, we note that Black raised a similar argument in his direct appeal, which

was rejected by a panel of this court. Black, No. 27A04-0909-CR-501, at *5. Although

claims that have been previously raised and ruled upon are barred by res judicata, here, the

post-conviction court noted that Black had “expanded his appellate argument, stating that

he was prejudiced by the State’s delayed production of [Rogers’s] criminal history because

it did not include disposition for a 1999 Theft case, which would have been admissible at

the time of trial had the State timely produced it.” Appellant’s App. at 93. Therefore, we

reach the merits of his argument.

       Evidence is material under Brady “only if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would have been

                                             7
different.” Bunch, 964 N.E.2d at 297. Here, Black’s argument focuses on the State’s

failure to disclose the disposition of Rogers’s theft conviction from 1999. Although

Black’s defense counsel may not have been able to question Rogers regarding that

conviction, the defense was able to cross-examine Rogers about his criminal past, albeit

within reasonable limits imposed by the trial court, and this included the elicitation of

testimony that Rogers faced Class B felonies prior to entering into an agreement to work

as a confidential informant for the State. Trial Tr. at 366-83. Counsel for Black was

permitted to elicit testimony that Rogers faced “serious” charges before working as a

confidential informant and that Rogers was doing what he had to do to avoid prison time,

as he “desperately” did not want to go to prison. Id. at 383. Defense counsel also elicited

testimony that Rogers was a heroin addict, and he established the dates of three different

charges against Rogers, all for dealing in cocaine or conspiracy to commit dealing in

cocaine. Id. at 336-339. Black’s counsel established that Rogers, and not the police,

selected the dealers he would buy from as a confidential informant. Id. at 340. He elicited

testimony that Rogers was required to assist in the arrest of Black in exchange for a

reduction or dismissal of the charges he faced and that the charges against Rogers were

indeed dismissed. Id. at 337, 340. Defense counsel was also able to elicit testimony that

Rogers had worked previously as a confidential informant, which established an inference

of a lengthier criminal history than the one established by the present plea agreement alone.

Id. at 358, 362, 363.

       We do not see how the disclosure of one additional theft conviction from 1999 could

have resulted in a different outcome to Black’s trial. Rogers’s credibility was heavily

                                             8
attacked by defense counsel’s questioning. We, therefore, conclude that the evidence at

issue did not constitute material evidence, and there was no Brady violation. The post-

conviction court did not err in denying relief on this claim.

                             III. Newly Discovered Evidence

       Newly discovered evidence mandates a new trial only when a defendant

demonstrates that: (1) the evidence has been discovered since trial; (2) it is material and

relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or

incompetent; (6) due diligence was used to discover it in time for trial; (7) it is worthy of

credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a

different result at trial. Whedon v. State, 900 N.E.2d 498, 504 (Ind. Ct. App. 2009) (citing

Taylor v. State, 840 N.E.2d 324, 329-30 (Ind. 2006)). “We ‘analyze[ ] these nine factors

with care, as the basis for newly discovered evidence should be received with great caution

and the alleged new evidence carefully scrutinized.’”           Id.   The petitioner for post-

conviction relief bears the burden of showing that all nine requirements are met. Id.

       Black contends that the post-conviction court erred in denying his petition based on

the newly discovered evidence of Rogers’s mental health records. Black argues that the

post-conviction court erred in finding that he failed to meet his burden of proof on at least

three of the criteria. He specifically asserts that the newly discovered evidence was not

merely impeaching, that he had exercised due diligence to discover the evidence before the

trial, and that the evidence would have probably produced a different result at retrial. We

disagree.



                                               9
       Here, the alleged newly discovered evidence consisted of Rogers’s medical history

and mental health records. First, such evidence would have been merely impeaching of

Rogers’s credibility. In order to merit a new trial, the evidence at issue cannot be merely

impeaching. Id.

       Second, it appears that due diligence was not used to discover the evidence in time

for trial. At trial, Black’s counsel stated that “my client seems to think and apparently has

some secret source that I’m not aware of that [Rogers] suffers from schizophrenia and he’s

a mental case.” Trial Tr. at 241. Despite this claim, Black did not request a continuance

in order to investigate Rogers’s alleged mental health issues. At the post-conviction

hearing, Black testified that some inmates in his cell block had informed him prior to trial

that Rogers had a mental illness, and Black informed his defense counsel of the

information. PCR Tr. at 52-53. Defense counsel stated that he did not attempt to subpoena

Rogers’s mental health records. Id. at 40-41. We, therefore, conclude that Black did not

show that he used due diligence in discovering the alleged newly discovered evidence in

time for the trial.

       Third, the result of a retrial would not be different given the evidence at issue. The

evidence discussed above in reference to the alleged Brady violation and whether it would

have resulted in a different outcome of the trial applies equally here. At trial, defense

counsel was able to cross-examine Rogers about his criminal history, although within

reasonable limits imposed by the trial court, and this included questioning Rogers regarding

the Class B felonies he faced prior to entering into an agreement to work as a confidential

informant for the State and that he was doing what he had to do to avoid going to prison.

                                             10
Trial Tr. at 366-83. Black’s defense counsel strongly attacked Rogers’s credibility with

his cross-examination questioning. The evidence other than that provided by Rogers,

including the surveillance, the manner in which the controlled buy was conducted that

ensured that Black was actually involved in the transaction, and that the transaction was

recorded, further established Black’s guilt. Black has not shown that the newly discovered

evidence would have produced a different result at retrial and has, therefore, failed to

establish that his newly discovered evidence warranted a new trial. The post-conviction

court properly denied Black’s petition as to this claim.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




                                             11
