Pursuant to Ind.Appellate Rule 65(D), this                                     Jul 24 2013, 6:26 am
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:

ROBERT P. BENAVIDES                              GREGORY F. ZOELLER
Carlisle, Indiana                                Attorney General of Indiana

                                                 ERIC P. BABBS
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT P. BENAVIDES,                             )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 18A04-1210-PC-511
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                    APPEAL FROM THE DELAWARE CIRCUIT COURT
                        The Honorable Marianne L. Vorhees, Judge
                              Cause No. 18C01-1010-PC-5


                                       July 24, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Robert P. Benavides (Benavides), appeals the post-

conviction court’s denial of his petition for post-conviction relief.

       We affirm.

                                          ISSUES

       Benavides raises two issues on appeal, which we restate as:

       (1) Whether Benavides received ineffective assistance of counsel; and

       (2) Whether the post-conviction court abused its discretion by making or failing to

          make certain procedural rulings.


                         FACTS AND PROCEDURAL HISTORY

                            Facts of the Crime and Guilty Plea

       On November 27, 2002, Benavides and Jerry Wilson (Wilson) spent time together

in Room No. 22 of the Econo Motel located in Muncie, Indiana. While in the room,

Benavides called his girlfriend, Lindsey Barton (Barton), and asked her to pick him up.

Thereafter, Barton’s friend Kimberly Carroll (Carroll) picked Barton up and they both

went to the Econo Motel to see Benavides. In the meantime, Benavides and Wilson were

having discussions about robbing the manager of the motel. Benavides told Wilson to

“come on.” (Appellant’s App. p. 30). Wilson then picked up a handgun and they walked

out of the hotel room.


                                              2
       Benavides and Wilson got into the car driven by Carroll, and Barton was a

passenger in the car. After driving around for a while, Carroll stopped the car near the

motel. Benavides and Wilson got out and walked back to the motel towards the residence

of the owner, Hitesh Patel (Patel). Benavides kicked in the door of Patel’s apartment and

entered the premises with Wilson. Both Wilson and Benavides were wearing masks and

Benavides was armed with a handgun. Inside the apartment, Benavides and Wilson

robbed Patel and his wife at gun point. After Benavides and Wilson took money and a

wallet from Patel, they exited the apartment. They ran back to Carroll’s car shouting,

“go, go, go.” (State’s Exh. 1, pp. 3, 25). Once the two men got back into the car, Barton

saw that Benavides and Wilson had money in their hands and they began counting it.

Benavides told Wilson to get rid of the credit cards, which Wilson threw out of the

window.

       Patel gave a statement to the police in which he described his assailants as two

black males. However, Benavides was white and Wilson was black. Patel also told the

officers that both assailants were wearing masks covering their faces, such that Patel

could only “see a little around the eyes and the mouth.” (Exh. Vol. p. 87). Patel stated

that one assailant pushed Patel’s head down on a couch face-first so that he was unable to

see very well.

       The probable cause affidavit and other evidence that was forwarded to the

prosecutor’s office included the following witness statements: (1) Patel identified Wilson

(in a photographic lineup) as having stayed in Room No. 22 of the motel and having

                                            3
worn the same clothes as one of the assailants; (2) a woman overheard Benavides

whispering with Wilson in Room No. 22 and telling him to “come on,” before Wilson

picked up a handgun and he and Benavides walked out of the room; and (3) Carroll met

Benavides at the motel and drove him and Wilson in a car near the motel; after being

dropped off near the motel, Benavides and Wilson ran back to the car telling Carroll to

“Go! Go! Go!,” and Benavides counted several hundred dollars which he split with

Wilson; (4) Barton was dating Benavides at the time of the robbery; She saw Benavides

walk toward the motel with Wilson and saw Benavides return with money minutes later.

Moreover, Wilson made a full confession admitting that he and Benavides kicked in the

door and robbed the motel owner and his wife at gunpoint. Benavides also admitted to

the police that he and Wilson entered Patel’s apartment and took money from him.

      On March 4, 2003, Benavides successfully filed a motion to suppress a portion of

his statements to the police.    On March 13, 2003, after consulting with counsel,

Benavides entered a plea of guilty to Count II, burglary, as a Class B felony, Ind. Code §

35-43-2-1(1). In exchange for the plea of guilty, the State agreed to dismiss Count I,

armed robbery, a Class B felony, I.C. § 35-42-5-1; Count III, unlawful possession of a

firearm by a serious violent felon, a Class B felony, I.C. § 35-47-4-5; and Count IV,

possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11 . During the plea

hearing, Benavides acknowledged that he understood the plea agreement and that his

guilty plea was made of his own free will.        The trial court found that Benavides

understood the burglary charge to which he pled guilty, that he understood the possible

                                            4
sentences for the crime, and that the plea was free and voluntary. On April 10, 2003, the

trial court entered judgment on Benavides’ plea and sentenced him to ten years in the

Department of Correction, to be served consecutively to his sentence under Cause No.

18C01-0212-FB-21 (“FB-21”) (Exh. Vol. 62, 78-83).

                                Facts on Post-Conviction Relief

       On October 8, 2010, Benavides filed a petition for post-conviction relief seeking

to set aside his guilty plea. On August 13, 2012, a hearing was held nine years after

Benavides had pled guilty. Benavides called his trial counsel, Attorney Kelly Bryan

(Attorney Bryan), to testify.

       Attorney Bryan testified that typically, when a plea offer is made, he

communicates the plea offer to the client, and “weigh the pros and cons of the plea offer

versus trial.” (Tr. p. 33). Attorney Bryan stated that there was no reason to think he did

not follow proper practices in this case because he “uniformly follows those practices and

procedures.” (Tr. p. 33). He testified that it is “always the [d]efendant’s choice” whether

to plead guilty. (Tr. p. 33).

       Attorney Bryan acknowledged that at the time he represented Benavides in this

case, he was also representing him in FB-21. FB-21 was tried on March 10 and 11 of

2003, and resulted in Benavides’ conviction of five Class B felonies including burglary,

robbery, and confinement. Instead of proceeding to trial in the instant case, which had

been scheduled for March 17, 2003, Benavides pled guilty on March 13, 2003.



                                              5
       During Benavides’ direct examination of Attorney Bryan in the post-conviction

proceedings, the following exchange occurred:

       [BENAVIDES]: Isn’t it true that you told me that I was facing a potential hundred
       year sentence per case in FB-21, in which I was just convicted the day before, five
       B felonies?

       [ATTORNEY BRYAN]: I don’t have an independent recollection of that. It
       wouldn’t be uncommon for us to discuss penalties though.

       [BENAVIDES]: Okay. Isn’t it true that you told me that if I pled guilty, it would
       show the judge that I am remorseful and considering my age, I may receive a
       favorable sentence for both cases?

       [ATTORNEY BRYAN]: I really don’t have an independent recollection of what
       we discussed, but I think that it’s normal that we talk about mitigating
       circumstances that could be argued such as acceptance of responsibility.

       [BENAVIDES]: Isn’t it true that I told you I did not commit the motel robbery?

       [ATTORNEY BRYAN]: That, I don’t recall.

(Tr. p. 28). Benavides, himself, testified as follows:

       On March the 12th, [Attorney Bryan] brought this plea agreement, and he talked
       about the previous conviction. I was convicted on five (5) B felonies and told me
       I was facing a potential hundred (100) years. And he told me that I was charged
       on this case right here with armed robbery, burglary, and then when I was arrested,
       I was in possession of a handgun and marijuana. And he told me that he cannot
       beat the gun case and that him being a jury trial lawyer, that if the jury finds you
       guilty of possession of a handgun, they’re more than likely to convict on a robbery
       and burglary as well. And at the time, I’m young, I’m scared. I’m facing a
       hundred (100) years on this other cause number, and he said if you plead guilty to
       this ten (10) years capped, you’re more likely to receive a lenient sentence when
       you go to sentence for both cause numbers. And I agreed. I agreed to plead guilty
       on his---on him telling me that. I was scared and that’s why I pled guilty.


(Tr. pp. 38-39).


                                              6
                       Procedural Facts on Post-Conviction Relief

       Benavides’ pro se Post-Conviction Relief petition asked for representation by the

State Public Defender. On November 16, 2010, the Public Defender filed an appearance,

which was withdrawn on October 26, 2011. On April 23, 2012, a telephonic pre-trial

conference was held, and according to the post-conviction court’s docket entry,

Benavides, “inform[ed] the [c]ourt he wish[ed] to proceed with the Post-Conviction

Relief without counsel.” (Exh. Vol. 106). On August 6, 2012, Benavides filed a Motion

for Order to Release Prisoner Off of Max I Status. In his motion, Benavides claimed that

Delaware County Jail Officials had denied him access to the jail’s law library.

       At the August 13, 2012 Post-Conviction Relief hearing, Benavides was present in

court and represented himself. Benavides had subpoenaed Attorney Bryan and Officer

Jeff Lacy (Officer Lacy), who was the investigating officer of the robbery. Both were

present in court. Although Benavides told the post-conviction court that he had been

“denied access to the law library,” Benavides filed his memorandum of law in open court.

(Appellant’s App. p. 25). At the close of the hearing, Benavides told the court, “I wrote

you a letter and requested counsel.” (Tr. p. 41). The post-conviction court reminded

Benavides that the Public Defender had withdrawn, and informed Benavides that he had

done a “very good job” representing himself. (Tr. p. 41). Furthermore, the court stated

that, “it’s our policy that we don’t appoint public defenders for post-conviction

matters…I think you presented everything clearly, and I understand your position.” (Tr.



                                            7
p. 41). On September 27, 2012, the post-conviction court issued its findings of fact,

conclusions of law, and judgment denying relief. (Appellant’s App. pp. 46-57).

       Benavides now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

                                    I.   Standard of Review

       Under the rules of post-conviction relief, the petitioner must establish the grounds

for relief by a preponderance of the evidence.          Ind. Post-Conviction Rule 1, § 5;

Strowmatt v. State, 779 N.E.2d 971, 974-75 (Ind. Ct. App. 2002). To succeed on appeal

from the denial of relief, the post-conviction petitioner must show that the evidence is

without conflict and leads unerringly and unmistakably to a conclusion opposite that

reached by the post-conviction court. Id. at 975. The purpose of post-conviction relief is

not to provide a substitute for direct appeal, but to provide a means for raising issues not

known or available to the defendant at the time of the original appeal. Id. If an issue was

available on direct appeal but not litigated, it is waived. Id.

                          II. Ineffective Assistance of Trial Counsel

       Benavides contends that he was denied effective assistance of counsel.

Specifically, he asserts that his trial counsel overlooked a potential defense, and gave

erroneous advice as to penal consequences.          To prevail on a claim of ineffective

assistance of counsel, a petitioner must show two things: (1) the lawyer’s performance

fell below an “objective standard of reasonableness;” and (2) “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding
                                               8
would have been different.” Segura v. State, 749 N.E.2d 496, 501 (Ind. 2001), (quoting

Strickland v. Washington, 466 U.S. 668, 687-88, (1984)). Since Benavides has pled

guilty in this case, Indiana law generally recognizes two main types of ineffective

assistance of counsel claims where the Defendant was convicted pursuant to a guilty plea.

Id. at 502. The first category relates to errors or omissions that overlook a defense or fail

to mitigate a penalty. Kistler v. State, 936 N.E.2d 1258, 1263 (Ind. Ct. App. 2010). The

second category relates to “an improper advisement of penal consequences,” and this

category consists of two subcategories: (1) “claims of intimidation by exaggerated

penalty or enticement by an understated maximum exposure;” or (2) “claims of incorrect

advice as to the law.” Id.

                                         A. Defense

       Benavides insists that his trial counsel overlooked a defense based upon Patel’s

statement to the police that the assailants were two black males. In order to set aside a

conviction due to an attorney’s failure to raise a defense, a petitioner who has pled guilty

must establish that there is a reasonable probability that they would not have been

convicted had they gone to trial and utilized the omitted defense. Willoughby v. State,

792 N.E.2d 560, 563 (Ind. Ct. App. 2003), (citing State v. Van Cleave, 674 N.E.2d 1293,

1306 (Ind. 1996)).

       The record reflects that Patel’s statement is actually included in Exhibit 1. Patel’s

statement was part of the discovery that the State had provided to Attorney Bryan in

advance of the guilty-plea hearing. Attorney Bryan testified that he always reviews with

                                             9
the client the discovery received from the State before counseling the client regarding a

guilty plea, and he would have done nothing different in Benavides’ case. (Tr. pp. 31-

32). Thus, Patel’s statement was known to Attorney Bryan.

      Despite Patel’s statement, there are three witnesses placing Benavides at the motel

just before and just after the robbery took place. A witness heard Benavides tell Wilson

to “come on” shortly before Wilson picked up a handgun. (Exh. Vol. p. 2). Carroll and

Barton saw Benavides walk with Wilson towards the motel and returning with money in

their hands, telling Carroll to drive away quickly. (Exh. Vol. pp. 2-3, 25). Moreover,

Wilson gave a full confession admitting that Benavides participated in both breaking into

Patel’s apartment and taking Patel and his wife’s money at gunpoint.

      During the robbery, Patel was held face down so he was unable to see very well

and he stated that his assailants wore masks. Due to the substantial evidence which

supports and identifies Benavides being at the crime scene, Patel’s inaccurate

identification is not enough to preclude a conviction. We, therefore, cannot say that

Benavides’ counsel overlooked a defense.

                          B. Advisement on Penal Consequences


      Benavides also claims that Attorney Bryan incorrectly advised him that he would

receive a hundred-year sentence in FB-21 unless he pled guilty in this case. To set aside

a conviction because of a counsel’s incorrect advisement of the penal consequences, a

petitioner is required to establish, by objective facts, circumstances that support the

conclusion that counsel’s errors in advice as to the penal consequences were material to
                                           10
his or her decision to plead. Willoughby v. State, 792 N.E.2d 560, 564 (Ind. Ct. App.

2003), (citing Segura, 749 N.E.2d 496, 507 (Ind. 2001)).          Merely alleging that the

petitioner would not have pled guilty had the correct advice been given is deemed

insufficient. Id. Specific facts coupled with the petitioner’s conclusory allegation, must

establish an objective reasonable probability that competent representation would have

caused the petitioner not to enter a plea. Id. In other words, “a petitioner may be entitled

to relief if there is an objectively credible factual and legal basis from which it may be

concluded that ‘there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial. Carrillo v. State, 982

N.E.2d 461, 465 (Ind. Ct. App. 2013).

       Attorney Bryan testified that his practice was to discuss possible sentences and

acceptance of responsibility as an arguable mitigator.       Benavides also testified that

Attorney Bryan told him he was “more likely to receive a lenient sentence” for both

cause numbers if he were to plead guilty in this case. (Tr. p. 39).

       Here, Benavides received a substantial benefit from pleading guilty. In exchange

for the plea of guilty, the State agreed to dismiss Count I, armed robbery, a Class B

felony, I.C. § 35-42-5-1; Count III, unlawful possession of a firearm by a serious violent

felon, a Class B felony, I.C. § 35-47-4-5; and Count IV, possession of marijuana, a Class

A misdemeanor, I.C. § 35-48-4-11, and also agreed to cap his sentence at ten years . A

Class "B" felony carries a penalty upon conviction of a fixed term between six (6) and

twenty (20) years in prison. See Ind. Code § 35-50-2.        Since Benavides was initially

                                             11
charged with five Class B felony convictions which included robbery as a Class B felony

and burglary as a Class B felony, which were crimes of violence pursuant to Indiana

Code § 35-50-1-2(a), a 100-year sentence is not a fabrication of a potential sentence

under the conduct rule of § 35-50-1-2(c). As a result, Benavides has failed to establish

any evidence that would indicate that Attorney Bryan rendered any incorrect advice as to

the law and the penal consequences, nor has Benavides shown that he would have not

pleaded guilty had counsel “correctly advised him.” We, therefore, find no improper

advisement here.

                      III. Post-Conviction Court’s Procedural Rulings


       Next, Benavides claims that the post-conviction court abused its discretion by

refusing his request to appoint counsel for his post-conviction proceedings, and by failing

to rule on a motion in reference to the jail’s denial of Benavides’ access to the law

library. Generally, we review a post-conviction court’s procedural rulings for abuse of

discretion. Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005), trans. denied. An

abuse of discretion occurs when a post-conviction court’s decision is clearly against the

logic and effect of the facts and circumstances before it. Fuquay v. State, 689 N.E.2d

484, 486 (Ind. Ct. App. 1997), trans. denied.

       Turning to Benavides’ request for appointed counsel, we note that, “Neither the

Sixth Amendment of the U.S. Constitution nor Article I, Section 13 of the Indiana

Constitution guarantee the right to counsel in post-conviction proceedings.” Graves v.


                                            12
State, 823 N.E.2d 1193, 1196 (Ind. 2005). Also, Indiana Post-Conviction Rule 1(9)(a)

states:


          Upon receiving a copy of the petition, including an affidavit of indigency, from
          the clerk of the court, the Public Defender may represent any petitioner committed
          to the Indiana Department of Correction in all proceedings under this Rule,
          including appeal, if the Public Defender determines the proceedings are
          meritorious and in the interests of justice. The Public Defender may refuse
          representation in any case where the conviction or sentence being challenged has
          no present penal consequences. Petitioner retains the right to employ his own
          counsel or to proceed pro se, but the court is not required to appoint counsel for a
          petitioner other than the Public Defender.


          After Benavides filed his Post-Conviction Relief petition, the Public Defender

initially filed an appearance to represent Benavides and investigated his case. However

on October 26, 2011, the Public Defender withdrew without giving a specific reason. In

light of Rule 1(9)(a), it can be reasonably inferred that the Public Defender could have

withdrew upon determining either (1) that Benavides’ claims lacked merit or were not in

the interest of justice; or (2) that Benavides’ conviction no longer carried present penal

consequences. See Ind. Post-Conviction Rule 1(9)(a).            We conclude that the post-

conviction court did not abuse its discretion by refusing Benavides’ request for

appointment of counsel in the post-conviction proceedings.

          Next, Benavides claims that the post-conviction court abused its discretion by not

explicitly ruling on his Motion for Order to Release Prisoner Off Max I Status, which

concerned his lack of access to the law library. “No error or defect in any ruling or order


                                               13
or in anything done or omitted by the trial court or by any of the parties is ground for

granting relief or reversal on appeal where it’s probable impact, in light of all the

evidence in the case, is sufficiently minor so as not to affect the substantial rights of the

parties.” Ind. Appellate Rule 66(A).

       The lack of a ruling on the merits of this motion did not affect Benavides’

substantial rights. Beyond his own assertions, Benavides has not provided any evidence

that he was actually denied access to the law library during a relevant period of time.

Looking at the record as a whole, Benavides was able to timely file all the proper

paperwork and has shown that he was able to adequately conduct legal research relevant

to the issues raised in his petition. His brief contains a substantial amount of case law

along with pin point citations. Thus, there is no evidence that Benavides was unable to

access the law library. Therefore, we conclude, that the post-conviction court did not

abuse its discretion by declining to rule on the motion.

                                       CONCLUSION


       Based on the foregoing, we conclude that (1) Benavides did not receive

ineffective assistance of trial counsel; and (2) the post-conviction court did not abuse its

discretion by refusing to appoint Benavides a Public Defender and by declining to rule on

Benavides’ procedural motion.


       Affirmed.

KIRSCH, J. and VAIDIK, J. concur

                                             14
