MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
                                                                     Mar 27 2019, 11:58 am
regarded as precedent or cited before any
court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Demetrius M. Newell                                      Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Demetrius M. Newell,                                     March 27, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         79A04-1702-PC-345
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         79D02-1304-PC-8



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1702-PC-345 | March 27, 2019          Page 1 of 7
[1]   Demetrius Newell appeals the denial of his petition for post-conviction relief,

      arguing that the post-conviction court erroneously determined that Newell did

      not receive the ineffective assistance of trial counsel. Finding no error, we

      affirm.


                                                      Facts
[2]   In June 2011, the State charged Newell with conspiracy to commit dealing in a

      narcotic drug; multiple counts of dealing in a narcotic drug; multiple counts of

      possession of a narcotic drug; dealing in a look-a-like substance; maintaining a

      common nuisance; and multiple counts of neglect of a dependent. The State

      later filed a notice of intent to seek a habitual offender enhancement.


[3]   On December 8, 2011, Newell and the State filed a plea agreement, pursuant to

      which Newell would plead guilty to Class A felony “Dealing in Cocaine”1 and

      to Class C felony neglect of a dependent and would admit to being an habitual

      offender. Appellant’s App. p. 21. The State agreed to dismiss all other charges.

      The plea agreement provided that Newell’s sentence would include a portion to

      be executed in the Department of Correction (DOC) of at least twenty-six and

      no more than thirty-five years.


[4]   At the guilty plea hearing, the trial court specifically advised Newell about the

      charges to which he was pleading guilty, correctly noting that the Class A




      1
       The plea agreement mistakenly stated that Newell would plead guilty to dealing in cocaine rather than
      conspiracy to commit dealing in a narcotic drug. Both offenses are Class A felonies.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1702-PC-345 | March 27, 2019            Page 2 of 7
      felony charge was for conspiracy to commit dealing in a narcotic drug, and

      about the rights he was waiving by pleading guilty. Newell indicated that he

      understood and proceeded to cooperate with the trial court in establishing a

      factual basis for the charges. The trial court entered a guilty plea order that

      repeated the same error from the guilty plea agreement, mistakenly stating that

      Newell was pleading guilty to Class A felony dealing in cocaine and correctly

      stating that he was also pleading guilty to Class C felony neglect of a dependent

      and admitting to being an habitual offender. Id. at 22.


[5]   At the January 4, 2012, sentencing hearing, the State informed the trial court

      that the plea agreement and the guilty plea order mistakenly stated that Newell

      was pleading guilty to Class A felony dealing in cocaine rather than Class A

      felony conspiracy to commit dealing in a narcotic drug. The parties agreed that

      this was a typographical error and the trial court indicated that the record

      would be corrected by a nunc pro tunc order. The trial court sentenced Newell

      to thirty years for the Class A felony, enhanced by twelve years for the habitual

      offender finding, and to six years for the Class C felony, for an aggregate term

      of forty-eight years imprisonment. Pursuant to the plea agreement, the trial

      court ordered that only thirty-five years of the sentence would be executed in

      the DOC. The nunc pro tunc order correcting the error was issued on January

      10, 2012. Id. at 35.


[6]   On April 3, 2013, Newell filed a petition for post-conviction relief, arguing that

      he had received the ineffective assistance of trial counsel and raising other free-



      Court of Appeals of Indiana | Memorandum Decision 79A04-1702-PC-345 | March 27, 2019   Page 3 of 7
      standing claims of error. The post-conviction court denied the petition, and

      Newell now appeals.


                                   Discussion and Decision
[7]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:


              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” 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. To prevail on appeal from the denial of post-
              conviction relief, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). 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). Although we do not defer to the post-conviction
              court’s legal conclusions, “[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.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).




      Court of Appeals of Indiana | Memorandum Decision 79A04-1702-PC-345 | March 27, 2019   Page 4 of 7
[8]   Newell’s central claim on appeal is that he received the ineffective assistance of

      trial counsel.2 A claim of ineffective assistance of trial counsel requires a

      showing that: (1) counsel’s performance was deficient by falling below an

      objective standard of reasonableness based on prevailing professional norms;

      and (2) counsel’s performance prejudiced the defendant such that “‘there is a

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

      the proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441,

      444 (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

      reasonable probability arises when there is a ‘probability sufficient to undermine

      confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

      2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

      prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

      Ct. App. 2012).


[9]   Newell argues that trial counsel was ineffective for the following reasons:

      (1) trial counsel was ineffective for failing to notice the scrivener’s error in the

      plea agreement and original guilty plea order; and (2) trial counsel was

      ineffective for failing to object to the sentence imposed by the trial court, which




      2
        Newell also raises several freestanding claims of error, including: the trial court erred by sentencing Newell
      to a term exceeding thirty-five years; the trial court erred by failing to advise Newell of his rights at the guilty
      plea hearing; and the trial court erred by issuing a nunc pro tunc order correcting the scrivener’s error in the
      text of the guilty plea agreement. These issues were all known and available during the time in which Newell
      could have pursued a direct appeal. He did not do so; therefore, these arguments are waived and are not
      available in a post-conviction proceeding. Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001). As a
      result, we will not consider them.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1702-PC-345 | March 27, 2019                    Page 5 of 7
       Newell claims was beyond the sentence cap included in the guilty plea

       agreement.3


[10]   First, with respect to the scrivener’s error, at the guilty plea hearing, the trial

       court explicitly informed Newell of the specific conduct he was charged with as

       well as the actual (correct) charge itself. Moreover, when Newell admitted to

       the factual basis of the offense, he admitted to the specific facts underlying the

       charge of conspiracy to commit dealing in a narcotic drug. And at sentencing,

       Newell explicitly agreed that the references to cocaine, as opposed to heroin, in

       both the guilty plea agreement and the guilty plea order were merely

       typographical errors that could be corrected by a nunc pro tunc order. Under

       these circumstances, even if we were to give Newell the benefit of the doubt and

       conclude that trial counsel was ineffective for failing to notice the error, Newell

       has failed to show that he was prejudiced as a result. Therefore, the post-

       conviction court did not err by finding that Newell is not entitled to relief on

       this basis.


[11]   Second, with respect to counsel’s failure to object to the sentence imposed by

       the trial court, we note that the plea agreement provides as follows:


                The defendant shall receive the sentence this Court deems
                appropriate after hearing any evidence or argument of counsel.
                The sentence shall include a portion to be executed in the



       3
         We agree with the State that Newell has largely failed to make cogent arguments and has wholly failed to
       cite to relevant legal authority. That said, we will endeavor to address Newell’s central claims of ineffective
       assistance.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1702-PC-345 | March 27, 2019                 Page 6 of 7
               Department of Corrections [sic] of no less than twenty-six (26)
               and no more than thirty-five (35) years.


       Appellant’s App. p. 21. The trial court imposed an aggregate sentence of forty-

       eight years imprisonment but directed that only thirty-five of those years will be

       executed in the DOC. Therefore, the sentence complied with the guilty plea

       agreement, and trial counsel was not ineffective for failing to object.


[12]   The judgment of the post-conviction court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1702-PC-345 | March 27, 2019   Page 7 of 7
