      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                Dec 07 2015, 8:54 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
      Mark Hurst                                               Gregory F. Zoeller
      Pendleton, Indiana                                       Attorney General of Indiana
                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Mark Hurst,                                              December 7, 2015
      Appellant-Petitioner,                                    Court of Appeals Case No.
                                                               64A04-1505-PC-293
              v.                                               Appeal from the Porter Superior
                                                               Court
      State of Indiana,                                        The Honorable Mary R. Harper,
      Appellee-Respondent.                                     Judge
                                                               Trial Court Cause No.
                                                               64D05-1403-PC-1842



      Mathias, Judge.


[1]   The Porter Superior Court denied the petition for post-conviction relief filed by

      Mark Hurst (“Hurst”). Hurst appeals pro se and argues that the post-conviction


      Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015      Page 1 of 12
      court erred when it rejected Hurst’s claim that his sentence was improperly

      enhanced.

[2]   We affirm.


                                    Facts and Procedural History

[3]   The facts underlying Hurst’s conviction and sentence were set forth in our

      memorandum decision on Hurst’s direct appeal:


              In 2008, Kevin Waite (Waite) joined Facebook. Sometime in
              2010, Waite started chatting with Natalie Coats (Coats) on
              Facebook. Waite knew Coats from his freshmen year at school.
              Waite's hope was to have a relationship with Coats and, he asked
              her out on a date on several occasions. She kept on putting it off
              due to other plans but Coats eventually agreed to go out on a
              date with Waite. On December 4, 2011, Waite and Coats texted
              each other back and forth. Waite wanted to go to a movie with
              Coats but Coats wanted to go out to a bar and have fun. Coats
              then gave Waite the address to a bar, Shenanigan's. When Waite
              arrived, Coats was already there, together with her friend
              Brittany Foley (Foley), and two other men, one of which would
              later be identified as Hurst. Coats and Foley asked Waite to buy
              them a drink. Waite bought both of the girls a pitcher of beer.
              The girls introduced Waite to Hurst and the other male. The
              whole night, the group kept referring to Hurst as ‘Alfred’, so
              Waite never learned Hurst's real name.


              At some point during the evening, Coats and Foley asked Waite
              if they could get a ride home and Waite told them that he would
              think about it. Foley asked Waite for his cell phone so that she
              could text him later. Foley also inquired if she could get twenty
              dollars for child support. Waite refused and he told Foley that he
              was unemployed and could not afford to give her the money.
              Hurst then approached Waite and told him that he had
      Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015   Page 2 of 12
        overheard that Waite did not want to drive Coats and Foley
        home and that he was going to leave them “high and dry.”
        (Transcript pp. 93–94). As they continued talking, Hurst told
        Waite to drive him home as well. Waite asked whether it was
        necessary to drop all of them off and Hurst responded “yes you
        do if you'd like to keep your precious teeth.” (Tr. p. 95). This
        time, Waite agreed because he felt intimidated and scared. After
        that, Waite went to the restroom where he wanted to either call
        his parents or the police for help. However, Hurst followed him
        to the restroom, cornered him in the stall, and told Waite to
        show him the last people he called and texted. Waite agreed. At
        that point, Coats and Foley came into the men's restroom and
        asked if everything was alright. Out of fear, Waite told the girls
        that everything was fine, which made them leave the bathroom.
        Waite walked over to the sink to wash his hands and Hurst
        informed him “you're disrespecting me and my lady friends so
        you are going to buy pitchers of beer and shots for us.” (Tr. p.
        96). Hurst followed Waite to the bar where Waite bought
        pitchers of beer and shots for all of them. Hurst also told Waite to
        leave a ten or fifteen dollar tip for the bartender which Waite did
        out of fear. They drank the first round and Hurst demanded that
        Waite buys another round of beer and shots. At that point, Hurst
        had to leave for about 10 minutes, but before he left, he asked his
        other male friend to follow Waite to the parking lot and beat him
        up if he tried to leave.


        When Hurst returned, he demanded Waite go to the ATM and
        get twenty dollars for Foley. Waite drove Hurst and Foley to an
        ATM located at a Marathon gas station close by. Waite got out
        of the car and went over to the ATM and as he was putting his
        pin number in, Hurst pushed him aside and told Waite he would
        do it himself. He then asked Waite to drive to another ATM to
        get more money. At that time, Hurst had Waite's debit card and
        cell phone. Hurst handed Waite's debit card to Foley, who
        entered the Marathon gas station to retrieve more money from
        Waite's bank account. After returning to Shenanigans, Hurst

Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015   Page 3 of 12
              demanded that they leave again to buy food. Waite drove Foley
              and Hurst to Dennys. When they got to Dennys, Foley exited the
              car and asked Waite if he wanted anything, and Waite told her
              he was okay. Waite tried to get out of the car but Hurst told him
              to remain seated. At that point, Hurst asked Waite to give him
              his driver's license so he could write down Waite's information
              just in case Waite tried to notify the police. Out of fear, Waite
              handed it to him. Hurst informed Waite that if he attempted to
              notify the police, Hurst would go over to Waite's house with his
              buddies and beat him and his family. Hurst also told Waite that
              he was debating what to do with him next, whether to beat him
              up, or take his car. Hurst added, “at least you have your life and
              a little less money.” (Tr. p 120). Waite then drove Hurst and
              Foley to Foley's friend's trailer. When they got to their
              destination, Hurst and Foley got out of the car. Hurst told Waite
              his cellphone was in the back seat, he kicked Waite's car, and
              said, “go, go, go, you know, I'm letting you go.” (Tr. p 122).


      Hurst v. State, No. 64A03-1209-CR-391, 2013 WL 3874753, slip op. at 2-4 (Ind.

      Ct. App. July 25, 2013).


[4]   As a result, the State charged Hurst on January 11, 2012, with Class C felony

      robbery and Class D felony criminal confinement. On March 20, 2012, the

      State amended the charging information to add an allegation that Hurst was a

      habitual offender. A jury trial was held on April 23, 25, and 26, 2012, at the

      conclusion of which the jury found Hurst guilty as charged. On August 14,

      2012, the trial court sentenced Hurst to six years for his robbery offense

      enhanced by eight years because of his habitual offender adjudication. The

      court also sentenced him to a concurrent sentence of two years for the criminal

      confinement charge.


      Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015   Page 4 of 12
[5]   On direct appeal, Hurst argued that the trial court abused its discretion by

      admitting evidence regarding: Hurst’s prior convictions for residential entry and

      theft, a video recording of Hurst and his victim at the ATM machine, and

      testimony regarding a photograph used to identify Hurst. We rejected these

      arguments and affirmed Hurst’s convictions. Id., slip op. at 13.


[6]   On February 20, 2014, Hurst filed a petition for post-conviction relief, claiming

      inter alia that the trial court improperly imposed a doubly enhanced sentence.

      Then, on March 24, 2014, Hurst filed a motion to correct erroneous sentence,

      again claiming that his sentence was improperly doubly enhanced. The trial

      court denied this motion on July 15, 2014. Hurst then filed an amended petition

      for post-conviction relief on September 9, 2014, again repeating his sentencing

      claim. The trial court held an evidentiary hearing on Hurst’s post-conviction

      petition on March 26, 2015, but Hurst presented no evidence. The trial court

      entered an order denying Hurst’s petition on April 22, 2015. Hurst now appeals.


                               Post-Conviction Standard of Review

[7]   In addressing Hurst’s claims, it bears repeating that post-conviction proceedings

      are not “super appeals” through which convicted persons can raise issues they

      failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391

      (Ind. 2002). Post-conviction proceedings instead afford petitioners a limited

      opportunity to raise issues that were unavailable or unknown at trial and on

      direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). The post-

      conviction petitioner bears the burden of establishing grounds for relief by a

      preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008).
      Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015   Page 5 of 12
      Thus, on appeal from the denial of post-conviction relief, the petitioner appeals

      from a negative judgment. Id. To prevail on appeal from the denial of post-

      conviction relief, the petitioner must show that the evidence as a whole leads

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

      conviction court. Id. at 643-44.


[8]   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

      must determine if the court’s findings are sufficient to support its judgment.

      Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947

      N.E.2d 962. Although we do not defer to the post-conviction court’s legal

      conclusions, we review the post-conviction court’s factual findings under a

      clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or

      judge the credibility of witnesses, and we will consider only the probative

      evidence and reasonable inferences flowing therefrom that support the post-

      conviction court’s decision. Id.


                                       Discussion and Decision

[9]   Hurst claims that the trial court erred in applying the habitual offender

      enhancement to his sentence. Although Hurst’s appellate argument is sparse,

      from what we can discern, he contends that the habitual offender enhancement

      was improper because one of the predicate felonies supporting the habitual

      offender determination was itself allegedly enhanced from a misdemeanor to a

      felony.


      Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015   Page 6 of 12
[10]   The general rule regarding multiple sentence enhancements is that a trial court

       cannot impose a double enhancement absent explicit legislative direction.

       Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010). Three types of statutes

       authorize enhanced sentences for recidivist offenders: the general habitual

       offender statute; specialized habitual offender statutes; and progressive-penalty

       statutes. Dye v. State, 972 N.E.2d 853, 857 (Ind. 2012), aff’d on reh’g, 984 N.E.2d

       625 (Ind. 2013).


[11]   Here, the State alleged that Hurst had two prior, unrelated felonies: a 1998

       conviction in Illinois for residential burglary and theft and a 2007 conviction in

       Indiana for Class C felony battery. Hurst makes no challenge to the validity of

       his Illinois conviction and instead focuses his post-conviction argument on the

       validity of his 2007 Indiana conviction for felony battery. At the habitual

       offender portion of the trial, Hurst stipulated to the fact that, on August 2, 2007,

       he was convicted of Class C felony battery causing serious bodily injury for an

       incident that occurred on July 23, 2005. He was sentenced for this conviction

       on August 31, 2007, to eight years in the Department of Correction.


[12]   Hurst notes that he was originally charged with Class A misdemeanor battery,

       but at some point, the charge was amended to Class C felony battery causing

       serious bodily injury—the crime for which he was convicted. Hurst claims that

       because this offense was elevated to a Class C felony, it cannot form the basis of

       his habitual offender adjudication. For a variety of reasons, Hurst’s argument

       fails.



       Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015   Page 7 of 12
       A. Waiver by Procedural Default

[13]   First, nothing in the record suggests that this claim was somehow unknown or

       unavailable to Hurst during his direct appeal. To the contrary, his claim of

       sentencing error was available on direct appeal, and by failing to present it on

       direct appeal, it is now waived by procedural default. See Bunch v. State, 778

       N.E.2d 1285, 1289 (Ind. 2002) (holding that defendant’s claim of sentencing

       error was procedurally defaulted on post-conviction where the sentencing issue

       was available but not raised on direct appeal); Taylor v. State, 780 N.E.2d 430,

       435 (Ind. Ct. App. 2002) (following Bunch in holding that defendant’s claim of

       sentencing error was unavailable in petition for post-conviction relief where the

       issue could have been raised on direct appeal but defendant filed no direct

       appeal); see also Collins v. State, 817 N.E.2d 230, 232-33 (Ind. 2004) (adopting

       holding in Taylor).


       B. Res Judicata

[14]   Even if Hurst’s claim was not procedurally defaulted, he would still not prevail.

       On March 24, 2014, after his direct appeal, and after filing his first petition for

       post-conviction relief, Hurst filed a motion to correct erroneous sentence.1 In his

       motion, Hurst claimed that his habitual offender enhancement was improper



       1
         A motion to correct erroneous sentence provides prompt, direct access to an uncomplicated legal process
       for correcting an erroneous or illegal sentence. Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004). A motion
       to correct sentence is a remedy that is only appropriate when the sentence is erroneous on its face. Id. at 786.
       A motion to correct sentence should be narrowly confined to claims apparent from the “face of the
       sentencing judgment, and the ‘facially erroneous’ prerequisite should henceforth be strictly applied.” Id. at
       787. If a sentencing claim is not facially apparent, then a motion to correct sentence is not a proper remedy.
       Id.

       Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015              Page 8 of 12
       because it was based on his battery conviction which had itself been enhanced.

       In his original motion to correct erroneous sentence, Hurst claimed that his

       conviction for battery had been enhanced to robbery. The trial court noted that

       battery cannot be elevated to robbery and that battery is itself never elevated

       based upon a prior conviction. Appellant’s App. pp. 10-11. In his motion to

       correct error from the trial court’s denial of his motion to correct erroneous

       sentence, Hurst apparently corrected his argument to refer to his conviction for

       battery. See id. at 13. The trial court denied the motion to correct erroneous

       sentence on its merits.


[15]   Hurst presents essentially this same argument once again on post-conviction

       review. The trial court considered Hurst’s motion to correct erroneous sentence

       on the merits and concluded that his claim of sentencing error was without

       merit. Although Hurst filed a motion to correct error from the trial court’s

       denial of his motion to correct erroneous sentence, which the trial court denied,

       nothing in the record indicates that he filed an appeal from this denial. Thus, a

       final judgment has been entered on the merits of the claim Hurst now presents

       in his petition for post-conviction review.

[16]   Res judicata prevents the repetitious litigation of disputes that are essentially the

       same. Wright v. State, 881 N.E.2d 1018, 1021-22 (Ind. Ct. App. 2008), trans.

       denied. The claim preclusion branch of res judicata is applicable in this case.

       Claim preclusion applies where a final judgment on the merits has been

       rendered and acts as a complete bar to a subsequent action on the same issue or

       claim between those parties and their privies. Id. In order for a claim to be

       Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015   Page 9 of 12
       precluded under the doctrine of res judicata, the following four requirements

       must be satisfied: (1) the former judgment must have been rendered by a court

       of competent jurisdiction; (2) the former judgment must have been rendered on

       the merits; (3) the matter now in issue was, or could have been, determined in

       the prior action; and (4) the controversy adjudicated in the former action must

       have been between the parties to the present suit or their privies. Id.


[17]   Here, nothing in the record indicates that the trial court that denied Hurst’s

       motion to correct erroneous sentence was anything other than a court of

       competent jurisdiction; the trial court denied the motion on its merits; the issue

       of Hurst’s sentence was at issue and determined in the motion; and the parties

       are the same. We therefore conclude that Hurst’s attempt to relitigate the issue

       of the propriety of his habitual offender enhancement is precluded as res

       judicata. See Saunders v. State, 794 N.E.2d 523, 527 (Ind. Ct. App. 2003)

       (holding that defendant’s post-conviction claim that his sentence was

       inappropriate was precluded by res judicata where the issue of the

       reasonableness of his sentence was decided on direct appeal).


       C. Waiver for Failure to Present a Cogent Argument

[18]   We further conclude that Hurst’s claim is waived for failure to present a cogent

       argument. 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. Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App.

       2005) (citing Ind. App. Rule 46(A)(8)(a)). Although Hurst is proceeding pro se,

       pro se litigants are held to the same standard regarding rule compliance as are
       Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015   Page 10 of 12
       attorneys duly admitted to the practice of law and must comply with the

       appellate rules to have their appeal determined on the merits. Id.


[19]   Hurst cites to no authority to support his contention. The few cases he does cite

       simply stand for the proposition that a trial court has a duty to correct an

       erroneous sentence, see Senn v. State, 766 N.E.2d 1190, 1194 (Ind. Ct. App.

       2002), and that a facially erroneous sentence may be corrected even if not

       presented in motion to correct error. See Watkins v. State, 588 N.E.2d 1342, 1344

       (Ind. Ct. App. 1992) (referring to former requirement that a party file a motion

       to correct error to preserve an issue for appeal).


       D. Hurst’s Claim is Meritless

[20]   Lastly, even if we were to overlook that Hurst’s current claim is barred by

       procedural default, res judicata, and waiver, Hurst’s claim is without merit.

       Hurst claims that his sentence was subject to double enhancement. He is

       incorrect.


[21]   Nothing in the record supports Hurst’s contention that his conviction for Class

       C felony battery was enhanced. Instead, it appears that the State initially

       charged Hurst with Class A misdemeanor battery but later amended the charge

       to Class C felony battery causing serious bodily injury, the crime for which he

       was ultimately convicted. Thus, Hurst was not convicted under a “progressive

       penalty” statute that enhances a crime based upon the commission of a prior

       crime of the same or similar sort. See Dye, 972 N.E.2d at 857.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015   Page 11 of 12
[22]   The bottom line is that Hurst was not subject to “double enhancement” because

       his current sentence was enhanced only once by the general habitual offender

       statute. The fact that his prior conviction happened to be a more serious form of

       battery is inapposite.

                                                  Conclusion

[23]   For all of these reasons, we conclude that the trial court did not clearly err in

       denying Hurst’s petition for post-conviction relief.

[24]   Affirmed.


       Baker, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015   Page 12 of 12
