Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE:                                  ATTORNEYS FOR APPELLEE:

DANIEL R. FUQUAY, SR.                              GREGORY F. ZOELLER
Branchville, Indiana                               Attorney General of Indiana

                                                   J.T. WHITEHEAD
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                                                 FILED
                                                                             Nov 20 2012, 9:20 am

                               IN THE
                                                                                     CLERK
                     COURT OF APPEALS OF INDIANA                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court




DANIEL R. FUQUAY, SR.,                             )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 82A01-1110-PC-519
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                  APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                         The Honorable Kelli E. Fink, Magistrate
                             Cause No. 82C01-0803-FD-258



                                       November 20, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Daniel R. Fuquay, Sr. appeals the denial of his petition for post-conviction relief. He

raises seven issues; however, we consolidate and restate the dispositive issue as whether the

post-conviction court properly denied Fuquay’s petition.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       In March 2008, the State arrested Fuquay and charged him with Class D felony

possession of cocaine1 in cause number 82D02-0803-MC-180 (“MC-180”). Thereafter, for

reasons not clear in the record, the charge was transferred to cause number 82C01-0803-MC-

213 (“MC-213”), which was then closed and dismissed after the State had filed the same

possession charge against Fuquay in cause number 82C01-0803-FD-258 (“FD-258”).

       Trial was scheduled for May 19, 2008; however, the parties appeared in court on May

16, at which time the trial of FD-258 was vacated due to court congestion, and the State

noted that a plea offer had been made to Fuquay, and “if defendant does not accept the offer,

[the] State advises a new case will be filed which is a Class B felony.” Appellant’s App. at

13. Thereafter, in June 2008, Fuquay entered a plea of guilty to the Class D felony

possession of cocaine charge in FD-258, and the trial court accepted the plea on June 23,

2008. At sentencing, the trial court imposed six months of incarceration to be served

consecutively to other cause numbers, 82C01-0703-FB-281 (“FB-281”) and 82C01-0912-

CF-8529.

       On March 10, 2010, Fuquay filed a petition for post-conviction relief. After a number

of withdrawn appearances by public defenders, the trial court ordered on January 5, 2011 that



                                              2
the cause proceed by affidavit. On March 17, 2011, Fuquay, proceeding pro se, filed

proposed findings of fact and conclusions of law, which he amended with trial court

permission on April 27, 2011. Thereafter, the State filed its proposed findings of fact and

conclusions of law. In September 2011, the trial court issued its findings and conclusions

and denied Fuquay relief. He now appeals.

                                 DISCUSSION AND DECISION

       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);

Willoughby v. State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied. When

appealing from the denial of post-conviction relief, the petitioner stands in the position of one

appealing from a negative judgment. Willoughby, 792 N.E.2d at 562. 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.

       In his initial petition, filed in February 2010, Fuquay asserted five alleged grounds for

relief: (1) he was “denied counsel in his initial phase”; (2) he was “denied his right to a fast

and speedy trial”; (3) he was “denied effective assistance of counsel, whom failed to

challenge the lawfulness of the arrest, inter alia”; (4) there was not “probable cause for the

arrest and seizure, [and] the evidence obtained [was] ‘fruits of the poisonous tree’”; and (5)

his plea was “[not] a voluntary and intelligent choice, or [was] obtained by a threat.”

Appellant’s App. at 39. Later, in April 2011, Fuquay filed an Affidavit and Proposed

Findings of Fact and Conclusions of Law, and therein asserted two more grounds for relief,

       1
           See Ind. Code § 35-48-4-6(a).
                                               3
alleging that: (1) the trial court violated Indiana statutory law when it ordered that $500 of

Fuquay’s bond be allocated to the Public Defender’s Fund; and (2) Fuquay did not receive a

fair opportunity to challenge his right against unreasonable searches under the Indiana

Constitution. Id. at 52. Those same seven issues are presented to us in his appeal.

        Post-conviction procedures do not afford the petitioner with a super-appeal. Lindsey

v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied. Rather, subsequent

collateral challenges to convictions must be based on the grounds enumerated in the post-

conviction rules. Id. If an issue was known and available, but not raised on direct appeal, it

is waived. Id. Here, Fuquay chose to plead guilty; now is not the time to assert claims

regarding the lawfulness of the search or seizure or whether his bond was allocated

appropriately. See Neville v. State, 663 N.E.2d 169, 172 (Ind. Ct. App. 1996) (following

conviction upon guilty plea, defendant’s challenge to search of house is not proper). Of the

seven asserted issues, only two are appropriate post-conviction claims for our review,

namely, whether he received effective assistance of trial counsel and whether his plea was

voluntary.2 See e.g., Oliver v. State, 843 N.E.2d 581, 591 (Ind. Ct. App. 2006) (post-

conviction claim of ineffective assistance of trial counsel), trans. denied, and Barker v. State,

812 N.E.2d 158, 162-63 (Ind. Ct. App. 2004), (post-conviction claim that guilty plea was not

knowing and voluntary), trans. denied. Upon examination of Fuquay’s brief, we find that he




        2
          We note that, according to the State, “Fuquay [] has pursued so many appeals and raised so many
issues that keeping track is becoming difficult. But the undersigned counsel has already written at least once
and perhaps even twice about the willingness and voluntariness of Fuquay’s guilty plea in cause FB-281.”
Appellee’s Br. at 5-6.


                                                      4
fails to provide cogent argument or legal support for the two available issues, and thus his

claims are waived. Ind. Appellate Rule 46(a)(8).

       Waiver notwithstanding, we find no post-conviction court error. It appears that the

primary theme of Fuquay’s appeal is that his trial attorney was ineffective. To prevail on a

claim of ineffective assistance of counsel, a petitioner must show the lawyer’s performance

fell below an objective standard of reasonableness, and there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. Oliver, 843 N.E.2d at 591 (citing Segura v. State, 749 N.E.2d 496, 500-01 (Ind.

2001). Counsel is presumed competent, and a defendant must offer strong and convincing

evidence to overcome the presumption that counsel prepared and executed an effective

defense. Id. Where, as here, a petitioner for post-conviction relief pleaded guilty, the

petitioner must establish both that counsel’s performance was deficient and a reasonable

probability that, but for counsel’s errors, petitioner would not have pleaded guilty and would

have insisted on going to trial. Id.

       As stated above, the State advised Fuquay that should he choose not to accept the plea

agreement as offered in FD-258, the State, having probable cause to believe Fuquay

delivered cocaine to a confidential informant, intended to file a Class B felony charge of

dealing in cocaine against Fuquay. This information was first communicated in a May 13,

2008 letter from the Vanderburgh County prosecutor to Fuquay’s then-attorney, next shared

with Fuquay by his attorney, and then discussed in open court. Appellant’s App. at 17. In his

appeal, Fuquay appears to suggest that his attorney fabricated the letter, stating that his

“appointed attorney created the letter with a designed purpose intended to instill a fear in

                                              5
[Fuquay], to forgo going to trial.” Appellant’s Br. at 7; see also Reply Br. at 3 (public

defender kept trying to drive home threat and plant seed of fear). He further argues that the

State and the trial court “became involved” and “conspired against Fuquay” concerning

potential charges that would be filed if he declined the plea offer.3 Fuquay provides no

support whatsoever for the allegations of fabrication and conspiracy. He has failed to show

that his counsel’s performance was deficient or that he would have insisted on going to trial

without the letter. Accordingly, the post-conviction court did not err by finding that Fuquay

received effective assistance of counsel.

       In a related argument, Fuquay urges us to find that the letter expressing the State’s

intent to file a Class B felony charge if he chose not to plead guilty to the Class D possession

charge was an empty threat for which the State had no probable cause, and which caused him

to accept the plea; accordingly, he asserts, his guilty plea was not made voluntarily. As with

his ineffective assistance of counsel claim, Fuquay has failed to provide any support for the

assertion that the State induced his plea by making unsupported threats of another, more

serious criminal charge. This claim, like his ineffectiveness claim, is without merit, and the

post-conviction court did not err by denying Fuquay’s petition.

       Affirmed.

NAJAM, J., and MAY, J., concur.




       3
          Fuquay also alleges that the Vanderburgh Circuit Court “grossly violated numerous rules of
procedure that “subjects VCC to an open shame[.]” Reply Br. at 1 (emphasis in original). Unsupported
allegations such as this have no persuasive value.

                                                 6
