 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                           Mar 11 2013, 10:01 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




ATTORNEYS FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

STEPHEN T. OWNES                                     GREGORY F. ZOELLER
Public Defender of Indiana                           Attorney General of Indiana

DEIDRE R. ELTZROTH                                   JODI KATHRYN STEIN
Assistant Chief Deputy Public Defender               Deputy Attorney General
Indianapolis, Indiana                                Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MARK A. SALISBURY,                                   )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 17A03-1209-PC-373
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE DEKALB SUPERIOR COURT
                           The Honorable Monte L. Brown, Judge
                               Cause No. 17D02-0902-PC-3


                                           March 11, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       Mark A. Salisbury appeals the post-conviction court’s denial of his petition for

post-conviction relief. He contends that the post-conviction court erred in finding that his

plea was knowingly, intelligently, and voluntarily entered into because he had effective

assistance of trial counsel. Finding that Salisbury received effective assistance of trial

counsel and therefore pled guilty knowingly, intelligently, and voluntarily, we affirm.

                             Facts and Procedural History

       On September 4, 2005, Salisbury had sexual intercourse with his thirteen-year-old

stepdaughter, E.K. On September 3, 2007, Salisbury had sexual intercourse with fifteen-

year-old E.K. again. Two days later, the State charged Salisbury with Class A felony

child molesting for the 2005 incident and Class B felony sexual misconduct with a minor

for the 2007 incident. The State also alleged that Salisbury was a habitual offender.

       The State offered Salisbury two different guilty-plea options: (1) Class B felony

sexual misconduct with a minor and admit to being a habitual offender with a thirty-five

year sentence with five years suspended and (2) Class A felony child molesting with a

thirty-year sentence with five years suspended. See State’s Ex. A. Option 1 also required

Salisbury to register as a sex or violent offender for at least ten years unless the State

petitioned for him to be designated as a sexually violent predator (SVP), which it testified

that it would have, Tr. p. 6, in which case he would be required to register for life.

Option 2, on the other hand, would deem Salisbury a SVP by operation of law and

require him to register as such for life. Under either option, he would be able to petition

for removal from the sex-offender registry after ten years. After discussing the two


                                             2
options with his attorney, Salisbury chose Option 2 because it called for a shorter

executed prison sentence. Id. at 25.

      At the sentencing hearing, Salisbury pled guilty to Class A felony child molesting

and was sentenced to an executed sentence of twenty years. At the hearing, the trial court

advised Salisbury that he would be an SVP as a matter of law and was required to register

as such. Salisbury made no objection and did not move to withdraw his guilty plea.

      Two years later, Salisbury petitioned for post-conviction relief, alleging that there

was no evidence supporting his Class A felony conviction. Appellant’s App. p. 5-17.

The petition was amended three years later to include the claim that Salisbury’s plea was

not made knowingly, voluntarily, or intelligently because he was not adequately advised

by his trial counsel that his conviction made him an SVP. Id. at 24-27.

      A post-conviction hearing was held, and Salisbury’s trial counsel testified that he

would have discussed the registry requirement with Salisbury, as he did in all sex-offense

cases, but he could not remember whether he had discussed the SVP status specifically.

Tr. p. 16. Salisbury testified that he chose Option 2 because it called for a shorter

sentence and that he was not advised about the SVP status; he also claimed that he would

have chosen Option 1 if he had known about the SVP status that came with Option 2. Id.

at 26. Finally, Salisbury testified that he had never questioned why the Class A felony

sentencing option was shorter than the Class B felony sentencing option. The State

presented evidence that it would have petitioned the court to designate Salisbury as an

SVP anyway had he chosen Option 1. Id. at 6.




                                            3
       The post-conviction court denied Salisbury’s petition for post-conviction relief,

finding Salisbury’s testimony not to be credible. The post-conviction court also found

that no evidence was submitted that “in the Spring of 2008, defense attorneys had an

objective standard of reasonableness where they advised their clients of the registry

implications of particular cases.” Appellant’s App. p. 47. Finally, the post-conviction

court found that there was no consequential difference between being an SVP under the

law or a petitioned SVP; either way Salisbury could petition for removal from the registry

after ten years. Id. at 48-49.

       Salisbury 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);

Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of

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

negative judgment. Id. 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. The post-conviction court in this case entered findings of fact

and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). “A post-

conviction court’s findings and judgment will be reversed only upon a showing of clear

error—that which leaves us with a definite and firm conviction that a mistake has been

made.” Id. The post-conviction court is the sole judge of the weight of the evidence and




                                            4
the credibility of witnesses. Id. We accept findings of fact unless clearly erroneous, but

we accord no deference to conclusions of law. Id.

       Salisbury contends that his plea was not knowing, intelligent, and voluntary

because he received ineffective assistance of trial counsel. To prevail on a claim of

ineffective assistance of counsel, a petitioner must demonstrate both that his counsel’s

performance was deficient and that the petitioner was prejudiced by the deficient

performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). However, failure to

satisfy either prong will cause the claim to fail. French v. State, 778 N.E.2d 816, 824

(Ind. 2002). “[I]f we can dismiss an ineffective assistance claim on the prejudice prong,

we need not address whether counsel’s performance was deficient.” Lee v. State, 892

N.E.2d 1231, 1233 (Ind. 2008).

       Counsel’s performance is deficient if it falls below an objective standard of

reasonableness based on prevailing professional norms.        French, 778 N.E.2d at 824.

Counsel is afforded considerable discretion in choosing strategy and tactics, and we will

accord those decisions deference. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001),

reh’g denied. A strong presumption arises that counsel rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment. Id. To

meet the appropriate test for prejudice, the petitioner must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. Id. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).




                                             5
       There are two different types of ineffective assistance of counsel claims that can

be made in regards to guilty pleas: (1) failure to advise the defendant on an issue that

impairs or overlooks a defense and (2) an incorrect advisement of penal consequences.

Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001). Since Salisbury is arguing that he was

not properly advised about the SVP status that was a part of his plea agreement, the

second category is at issue. The specific standard for showing prejudice on such a claim

was articulated by our Supreme Court in Segura:

       for claims relating to penal consequences, a petitioner must establish, by
       objective facts, circumstances that support the conclusion that counsel’s
       errors in advice as to penal consequences were material to the decision to
       plead. Merely alleging that the petitioner would not have pleaded is
       insufficient.   Rather, specific facts, in addition to 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. at 507.

       Salisbury contends that if he had been properly advised about the SVP status that

was a part of the plea agreement he accepted, he would have chosen the other available

plea agreement. We find this argument to be without merit for two reasons.

       First, his argument assumes that the trial court found Salisbury to be credible when

he stated he would have taken a longer prison sentence to have a ten-year sex-offender

status. Apparently the trial court did not find him to be credible on this point. And

indeed, it is not reasonable to believe that a forty-four-year-old with an extensive criminal

history would choose an option with a longer executed prison term in exchange for a

potentially more lenient registration status at the end of his executed sentence. This

conclusion is bolstered by his trial attorney’s testimony that he informed all clients

                                             6
generally about the sex-offender registry and had no reason to believe he did not here,

and Salisbury’s incredulous testimony that he had no idea why one plea agreement option

provided for more jail time than the other.

       Second, the difference between the two SVP classifications was found by the post-

conviction court to be “inconsequential.” Appellant’s App. p. 49. Indiana Code section

35-38-1-7.5 governs SVP statuses and states, in part, that a person who is at least

eighteen years of age who commits one of a list of offenses is considered an SVP by

operation of law. Class A felony child molesting, the charge in Option 2, is a listed

offense, but Class B felony sexual misconduct with a minor, the charge in Option 1, is

not. However, Indiana Code section 35-38-1-7.5(e) allows the prosecuting attorney to

request a hearing to determine if a defendant is an SVP if he does not qualify as an SVP

by operation of law - in this case, if he commits an offense other than one listed within

the statute. At the hearing, two psychologists or psychiatrists must testify as to whether

the defendant “suffers from a mental abnormality or personality disorder that makes the

individual likely to repeatedly commit a sex offense.”       I.C. 35-38-1-7.5(a).   Since

Salisbury has already repeatedly committed a sex offense against his stepdaughter, he

likely would be determined to be a petitioned SVP if the State were to request such a

hearing, which the evidence shows it would have if Salisbury chose Option 1. Tr. p. 6.

Both classifications, SVP by operation of law and petitioned SVP, allow the defendant to

petition for removal from the registry after ten years. I.C. 35-38-1-7.5(g). We therefore

agree with the post-conviction court that in this instance, the difference between the two

SVP classifications is inconsequential.


                                              7
       We find that Salisbury has failed to show by objective and reasonable facts that he

was prejudiced by his trial counsel’s assistance and his plea was anything but knowing,

intelligent, and voluntary. We hold that the post-conviction court did not err in denying

Salisbury’s petition for post-conviction relief based on his claim of ineffective assistance

of trial counsel.

       Affirmed.

BAILEY, J., and BROWN, J., concur.




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