MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Apr 02 2020, 9:45 am
court except for the purpose of establishing
                                                                       CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Stacy Yuron Hart                                         Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Indianapolis, Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Stacy Yuron Hart,                                        April 2, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-2279
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         82C01-1603-PC-1458



Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2279| April 2, 2020               Page 1 of 9
                                          Case Summary
[1]   In 2014, Stacy Yuron Hart was convicted of Level 3 felony methamphetamine

      dealing, Level 6 felony narcotic-drug possession, and Class A misdemeanor

      paraphernalia possession and found to be a habitual offender, for which he was

      sentenced to an aggregate term of thirty-five years of incarceration. We affirmed

      Hart’s convictions on direct appeal, and the Indiana Supreme Court denied

      transfer.


[2]   In 2018, Hart filed his amended petition for post-conviction relief (“PCR”),

      alleging freestanding claims, ineffective assistance of appellate counsel, err by

      the Court of Appeals of Indiana, newly discovered evidence regarding the

      habitual offender enhancement, and that the Public Defender’s Office and

      Court of Appeals of Indiana failed to advise him of the rules and perils of self-

      representation on appeal. The post-conviction court denied his petition in full

      without a hearing. Hart contends that the post-conviction court erred by

      denying him a hearing and PCR. We affirm.



                            Facts and Procedural History
[3]   The underlying facts leading to Hart’s appeal of the denial of his PCR petition

      are as follows:


              From July 15–19, 2014, C.D., a fourteen-year-old runaway, lived
              with Hart at various locations in Evansville. During this time,
              Hart gave someone methamphetamine in exchange for the use of
              a motel room and sold methamphetamine from his car and at

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2279| April 2, 2020   Page 2 of 9
        multiple residences. On July 19, police picked up C.D. C.D.
        tested positive for methamphetamine, Xanax, marijuana, and
        synthetic marijuana. Evansville Police Detective Tony Mayhew
        interviewed C.D. regarding her prior whereabouts.


        Based on what C.D. told him, Detective Mayhew obtained a
        search warrant for Hart’s vehicle. On July 24, police stopped
        Hart’s vehicle based on Detective Mayhew’s warrant. The officer
        found a digital scale, a cigarette case containing baggie corners
        and tweezers, a glass pipe with residue, and small baggies with
        what he believed were drugs. Testing of the substances in the
        baggies revealed 7.16 grams of methamphetamine, two tablets
        of methadone, three tablets of hydrocodone, and five tablets
        of Tramadol.


        The State charged Hart with Level 3 felony dealing in
        methamphetamine, Level 6 felony possession of a narcotic drug,
        Class A misdemeanor possession of paraphernalia, and Level 6
        felony possession of a legend drug. It alleged Hart was an
        habitual offender. A jury found Hart guilty of all charges except
        Level 6 felony possession of a legend drug, on which the trial
        court directed a verdict. The jury concluded Hart was an habitual
        offender based on his prior convictions of Class D felony failure
        to return to lawful detention in 2002 and Class C felony
        possession of a controlled substance in 2005.


        The trial court entered convictions and sentenced Hart to
        concurrent sentences of fifteen years for Level 3 felony dealing in
        methamphetamine, two and a half years for Level 6 felony
        possession of a narcotic, and one year for Class A misdemeanor
        possession of paraphernalia. Based on his adjudication as an
        habitual offender, the trial court enhanced Hart's sentence by
        twenty years for an aggregate sentence of thirty-five years.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2279| April 2, 2020   Page 3 of 9
      Hart v. State, No. 82A01-1411-CR-472, 2015 WL 6954942, at *1 (Ind. Ct. App.

      2015) (footnote omitted), trans. denied. On appeal, Hart argued that his trial

      counsel was ineffective for failing to move to suppress certain evidence, object

      to his habitual offender adjudication, and object to his enhanced sentence, with

      which we disagreed and affirmed his convictions. Id. Hart sought transfer,

      which was denied by the Indiana Supreme Court. Hart v. State, 46 N.E.3d 446

      (Ind. 2016).


[4]   On July 6, 2018, Hart filed an amended PCR petition, alleging freestanding

      claims, ineffective assistance of appellate counsel, error by the Court of Appeals

      of Indiana, newly discovered evidence regarding the habitual-offender

      enhancement, and that the Public Defender’s Office and Court of Appeals of

      Indiana failed to advise him of the rules and perils of self-representation on

      appeal. On August 21, 2019, the post-conviction court denied Hart’s petition

      without a hearing.



                                 Discussion and Decision
[5]   The standard of review for appeals from the denial of PCR is well-settled.

      Petitioners who have exhausted the direct-appeal process may challenge the

      correctness of their convictions and sentences by filing a post-conviction

      petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Petitioner bears the

      burden of establishing grounds for PCR by a preponderance of the evidence. Id.

      By appealing from a negative judgment, a petitioner faces a rigorous standard of

      review. Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003). Denial of PCR will

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2279| April 2, 2020   Page 4 of 9
      be affirmed unless, “the evidence as a whole leads unerringly and unmistakably

      to a decision opposite that reached by the post-conviction court.” Id. We do not

      defer to the post-conviction court’s legal conclusion but do accept its factual

      findings unless they are clearly erroneous. Stevens, 770 N.E.2d at 746. The post-

      conviction process does not provide a petitioner with a “super-appeal” but,

      rather, a “narrow remedy for subsequent collateral challenges to convictions,

      challenges which must be based on grounds enumerated in the post-conviction

      rules.” Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). Issues that were

      known and available but not raised on direct appeal are waived, and issues

      raised but decided adversely are res judicata. Id.


                 I. Ineffective Assistance of Appellate Counsel
[6]   Hart raises numerous claims of ineffective assistance of appellate counsel, all

      premised on the notion that Scott Barnhart represented him on direct appeal.

      The record, however, is clear that Hart ultimately chose to proceed pro se and

      file his own brief on direct appeal after Barnhart withdrew. Because Hart chose

      to represent himself on direct appeal, he is precluded from claiming ineffective

      assistance of appellate counsel. See Dowell v. State, 557 N.E.2d 1063, 1067 (Ind.

      Ct. App. 1990) (“If the defendant chooses to proceed pro se, he should realize

      he cannot later claim inadequate representation.”), cert. denied.


                                    II. Freestanding Claims
[7]   For the first time in his PCR petition, Hart contends that (1) the trial court

      lacked subject matter jurisdiction because the charging informations lacked

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2279| April 2, 2020   Page 5 of 9
      probable cause, (2) the trial court abused its discretion by issuing the search

      warrant because it was unsupported by probable cause, (3) the trial court was

      not neutral, and (4) the State’s witness was under duress.1 Because these

      freestanding claims were available but not raised on direct appeal, they are

      waived for post-conviction review. Rouster, 705 N.E.2d at 1003.


                                    III. Appellate Court Error
[8]   Hart contends that we made multiple erroneous decisions in Hart v. State, No.

      82A01-1411-CR-472, 2015 WL 6954942, at *1 (Ind. Ct. App. 2015) (footnote

      omitted), trans. denied, which was his direct appeal. While our decisions are

      subject to review, post-conviction proceedings are not the proper avenue. The

      proper avenue is to seek transfer with the Indiana Supreme Court, which Hart

      attempted to do following our decision in his direct appeal, which was denied.


                                         IV. Failure to Advise
[9]   Hart contends that both the Public Defender’s Office and the Court of Appeals

      of Indiana failed to inform him about the basic rules and perils of proceeding

      pro se on direct appeal. Hart, however, has not directed our attention to—nor do

      we know of any—legal precedent requiring such advisements by either the




      1
       In his brief, however, Hart seems to allege these claims under ineffective assistance of appellate counsel.
      Regardless, this approach still does not get Hart where he needs to go. As previously discussed above, Hart
      may not allege ineffective assistance of appellate counsel because he chose to proceed pro se in his direct
      appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2279| April 2, 2020                       Page 6 of 9
       Public Defender’s Office or us. Hart has failed to establish that his denial of

       PCR relief in this regard was erroneous.


                           V. Habitual Offender Enhancement
[10]   Hart contends that the Indiana Supreme Court’s opinion in Johnson v. State, 87

       N.E.3d 471 (Ind. 2017), which was decided after his direct appeal, invalidates

       his habitual offender enhancement. In Johnson, the Court concluded that

       pursuant to Indiana Code subsection 35-50-2-8(d), each prior-unrelated felony

       conviction used to enhance the sentence of an underlying felony conviction

       must meet the ten-year requirement.2 Hart’s Level 3 felony conviction,

       however, was enhanced pursuant to Indiana Code subsection 35-50-2-8(b) and

       therefore is not affected by Johnson. Hart has failed to establish that the post-

       conviction court erred in denying him relief in this regard.


                            VI. Denial of Evidentiary Hearing
[11]   Hart contends that the post-conviction court erred by denying him an

       evidentiary hearing regarding his PCR petition. Given that there were no

       motions for summary disposition in this matter, it appears that the post-

       conviction court denied Hart relief without a hearing pursuant to Indiana Post-

       Conviction Rule 1, section 4(f). Indiana Post-Conviction Rule 1, section 4(f)




       2
        We also note that in Johnson, the Court was considering a subsequent-amended version of Indiana Code
       section 35-50-2-8 than the version in effect during Hart’s case.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2279| April 2, 2020                  Page 7 of 9
       provides, in part, that “[i]f the pleadings conclusively show that petitioner is

       entitled to no relief, the court may deny the petition without further

       proceedings.”


               When a court disposes of a petition under subsection f, we
               essentially review the lower court’s decision as we would a
               motion for judgment on the pleadings. The court errs in
               disposing of a petition in this manner unless the pleadings
               conclusively show that petitioner is entitled to no relief. If the
               petition alleges only errors of law, then the court may determine
               without a hearing whether the petitioner is entitled to relief on
               those questions. However, if the facts pled raise an issue of
               possible merit, then the petition should not be disposed of under
               section 4(f). This is true even though the petitioner has only a
               remote chance of establishing his claim.


       Allen v. State, 791 N.E.2d 748, 752–53 (Ind. Ct. App. 2003) (cleaned up), trans.

       denied. Specifically, Hart argues that he should have been afforded a hearing in

       order to examine his former trial counsel to establish that counsel was

       ineffective in failing to allege a possible defense.


[12]   Hart’s contention fails for two reasons. First, the pleadings conclusively showed

       that Hart was entitled to no relief as a matter of law. Second, even if Hart had

       been allowed to examine his trial counsel, he was precluded from arguing

       ineffective assistance of trial counsel because it was previously alleged on direct

       appeal. See Rouster, 705 N.E.2d at 1003 (noting that issues that were raised on

       direct appeal but decided adversely are res judicata). Hart has failed to establish

       that the post-conviction court erred by denying him relief without a hearing.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2279| April 2, 2020   Page 8 of 9
[13]   The judgment of the post-conviction court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2279| April 2, 2020   Page 9 of 9
