Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                            FILED
any court except for the purpose of                           Jul 05 2012, 9:16 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                          CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




APPELLANT PRO SE:                                  ATTORNEYS FOR APPELLEE:

GEORGE WALKER                                      GREGORY F. ZOELLER
Carlisle, Indiana                                  Attorney General of Indiana

                                                   MICHAEL GENE WORDEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

GEORGE WALKER,                                     )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
              vs.                                  )      No. 49A02-1104-PC-419
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Steven R. Eichholtz, Judge
                           Cause No. 49G20-0503-PC-44252



                                          July 5, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       George Walker appeals the post-conviction court’s order denying his amended

petition for post-conviction relief. Walker presents a single issue for review, which we

restate as whether the post-conviction court erred when it determined that Walker had not

shown ineffective assistance or a deprivation of trial counsel.

       We affirm.

                          FACTS AND PROCEDURAL HISTORY

       On March 17, 2005, the State charged Walker with conspiracy to commit dealing

in cocaine, as a Class A felony; dealing in cocaine, as a Class A felony; possession of

cocaine, as a Class B felony; and possession of paraphernalia, as a Class A misdemeanor.

The State offered a deal under which Walker would plead guilty only to Class A felony

dealing in cocaine for a twenty-year sentence. Following negotiations with Walker’s

counsel from the public defender’s office, Scott Reust, the State offered to let Walker

plead guilty to Class B felony dealing in cocaine with a fifteen-year sentence. Walker

refused that plea deal.

       The trial court held a pre-trial hearing on July 12, 2005. Attorney Reust was

unable to attend, so Lindsey Schneider, another attorney from the public defender’s

office, represented Walker at the hearing. At that hearing, the trial court confirmed the

plea deadline to be August 9. On August 9, the trial court convened for the plea deadline

hearing. Again, Attorney Reust could not attend and Attorney Schneider appeared on

behalf of Walker.




                                             2
      Attorney Reust appeared on behalf of Walker at all other pre-trial hearings and at

trial. On the morning of trial, the State again offered the plea deal that Reust had

previously negotiated, but Walker again declined. Following trial, the jury returned a

verdict finding Walker guilty of conspiracy to commit dealing in cocaine, as a Class A

felony; dealing in cocaine, as a Class A felony; possession of cocaine, as a Class B

felony; and possession of paraphernalia, as a Class A misdemeanor. The trial court

entered judgment of conviction accordingly, and this court affirmed the convictions on

appeal in Walker v. State, No. 49A02-0511-CR-1076 (Ind. Ct. App. August 29, 2006).

      On November 15, 2007, Walker filed a pro se petition for post-conviction relief,

and the State filed its answer on December 14.1 On September 1, 2010, Walker filed a

pro se amended petition for post-conviction relief, and on October 15, he filed a

supplement to the amended petition. The post-conviction court held an evidentiary

hearing on January 21, 2011. On March 22, that court entered its findings of fact and

conclusions thereon denying post-conviction relief. Walker now appeals.

                                DISCUSSION AND DECSION

      In post-conviction appeals, our standard of review is well established:

      [T]he petitioner bears the burden of establishing grounds for relief by a
      preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Henley v.
      State, 881 N.E.2d 639, 643 (Ind. 2008). When appealing the denial of post-
      conviction relief, the petitioner stands in the position of one appealing from
      a negative judgment. Henley, 881 N.E.2d at 643. The reviewing court will
      not reverse the judgment unless the petitioner shows 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. Further, the post-
      conviction court in this case made findings of fact and conclusions of law
      in accordance with Indiana Post-Conviction Rule 1(6). We will reverse a

      1
          Walker has not included a copy of these pleadings in the appendix.
                                                   3
        post-conviction court’s findings and judgment only upon a showing of clear
        error, which is that which leaves us with a definite and firm conviction that
        a mistake has been made. Id. at 644. The post-conviction court is the sole
        judge of the weight of the evidence and the credibility of the witnesses.
        Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). We accept findings of
        fact unless clearly erroneous, but we accord no deference to conclusions of
        law. Id.

Taylor v. State, 929 N.E.2d 912, 917 (Ind. Ct. App. 2010), trans. denied.

        Walker presented multiple claims for post-conviction relief in his amended

petition and the supplement to that petition, but on appeal he asserts a single error.

Specifically, Walker does “not contest[] an attorney error, but a denial of his

constitutional right to be represented by effective counsel when[] counsel was

unexpectedly absent during the critical plea negotiation proceedings which is

constitutionally permissible only if there has been a waiver of the right to counsel’s

presence.” Appellant’s Brief at 7. Walker’s claim is not clear. He is either arguing that

the trial court committed fundamental error when it did not obtain a knowing, intelligent,

and voluntary waiver from Walker of his right to counsel at two pre-trial hearings when

substitute counsel from the public defender’s office represented him in lieu of appointed

counsel or that his appointed counsel was ineffective for having been absent. 2 We

address each contention in turn.

        But before we turn to the merits of Walker’s claims on appeal, we consider the

State’s waiver argument. Specifically, the State asserts that the claim or claims asserted

on appeal were available but not raised on direct appeal and, therefore, they are waived.


        2
            The quoted language could also be read to contend that Walker’s substitute counsel was
ineffective. But Walker made no argument regarding that attorney’s representation, either at the post-
conviction hearing or in his appellant’s brief. Therefore, we conclude that he did not intend to raise that
argument. If he did have such an intention, the argument is waived. See Ind. Appellate Rule 46(A)(8)(a).
                                                    4
But freestanding claims of fundamental error are available in post-conviction proceedings

to the extent they reflect on the performance of counsel. See Bin-Yisrayl v. State, 729

N.E.2d 102, 106 n.1 (Ind. 2000) (allegedly prejudicial pre-trial publicity claim not raised

on direct appeal reviewable in post-conviction as it reflects on the performance of

counsel); Benefiel v. State, 716 N.E.2d 906, 911 (Ind. 1999) (aspects of aggravators and

mitigators not available as free-standing claim but reviewable as they reflect on

performance of counsel), cert. denied, 531 U.S. 830 (2000). Walker’s claim or claims

clearly pertain to the representation or performance of counsel. Therefore, his claims are

not waived.

       Walker contends that he was deprived of his constitutional right to counsel without

a knowing, voluntary, and intelligent waiver when the trial court did not obtain Walker’s

permission to proceed at two pre-trial hearings in the absence of Walker’s appointed

counsel. And he asserts that this constitutes fundamental error available for review in

post-conviction proceedings. But the fundamental error doctrine as applied in post-

conviction proceedings is a misnomer. In Lindsey v. State, we noted that the

       fundamental error exception to the waiver rule in post-conviction
       proceedings is generally limited to those circumstances set forth in Bailey
       v. State, 472 N.E.2d 126, 1263 (Ind. 1985): “Deprivation of the Sixth
       Amendment right to effective assistance of counsel, or . . . an issue
       demonstrably unavailable to the petitioner at the time of his [or her] trial
       and direct appeal.”

888 N.E.2d 319, 324 (Ind. Ct. App. 2008) (citing Canaan v. State, 683 N.E.2d 227, 235

n.6 (Ind. 1997), cert. denied, 524 U.S. 906 (1998)). The issue of ineffective assistance of

counsel, in effect, asserts the deprivation of counsel. See Strickland v. Washington, 466

U.S. 668, 691 (“the right to counsel is the right to effective assistance of counsel”)
                                            5
(1984). Walker contends that he was deprived of counsel when his appointed public

defender did not attend two hearings. Thus, we consider Walker’s deprivation of counsel

claim not as fundamental error but, instead, as falling in one of the limited circumstances

set forth in Bailey, namely, the right to counsel or effective assistance of counsel.

       The post-conviction court concluded that Walker had “offered no evidence in

support” of his claim that he was deprived of counsel at a pre-trial hearing, and the record

supports that conclusion. Appellant’s App. at 52. Attorney Reust was unavailable to

attend the July 12, 2005, pre-trial hearing and the August 9, 2005, plea deadline hearing.

But Attorney Schneider, also from the public defender’s office, represented Walker at

those hearings. Walker was clearly represented by counsel when Attorney Reust was

absent. As such, the trial court was not required to obtain a waiver of counsel from

Walker. Walker’s claim that he was denied representation when Attorney Reust was

absent from two pre-trial hearings is without merit.

       And to the extent Walker contends that he was denied effective representation due

to Attorney Reust’s absence from two pre-trial hearings, that contention also must fail.

On this point the post-conviction court found that Walker

       fail[ed] to show that Mr. Reust was somehow ineffective as counsel
       because a colleague from his office covered two preliminary court events
       for him in his absence. There is simply no evidence before the Court to
       show that [Walker] was somehow prejudiced by Mr. Schneider’s
       participation at the two court events.

Appellant’s App. at 49. The record again supports that conclusion. Walker argues that,

but for Attorney Reust’s absences, Walker would have accepted the State’s plea offer.

But at the post-conviction hearing, Attorney Reust testified that he had informed Walker


                                              6
of the State’s plea offer, both before and after the pre-trial hearings for which counsel

was absent. Indeed, although the later of the two hearings was termed by the trial court a

“plea deadline” hearing, Attorney Reust testified that such deadlines were not hard and

fast in that court and that the State had renewed its plea offer on the morning of trial.

Each time, Walker refused to accept the offer. Walker has not shown that Attorney

Reust’s two absences impacted his decision or opportunity to accept a plea deal.

       Walker also made much at the post-conviction hearing of certain case law

regarding the entrapment defense that he contends Attorney Reust did not discuss with

him but, had he known of such case law, he would have decided to accept the plea deal.

But Attorney Reust testified that he and Walker had discussed the law on that defense

“extensively” and he had informed Walker that he would have a hard time prevailing

under that defense. Id. at 22. Attorney Reust also testified that he had recommended

“throughout” the representation that Walker “take the plea.” Id. at 23. Walker has not

shown that Attorney Reust’s absence from the two pre-trial hearings, the sole factual

basis for his post-conviction claims, affected his decision not to accept the State’s plea

offer. Thus, Walker has not demonstrated that he was denied effective assistance of

counsel, and his post-conviction claim on that basis must fail.

       Affirmed.

RILEY, J., and DARDEN, J., concur.




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