MEMORANDUM DECISION
                                                                      Feb 24 2015, 10:06 am

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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.



APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Curtis Hardaway                                           Gregory F. Zoeller
Michigan City, Indiana                                    Attorney General of Indiana

                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Curtis Hardaway,                                          February 24, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          49A02-1404-PC-261
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         Cause No. 49G01-0605-PC-95616

Appellee-Plaintiff.                                       The Honorable Kurt Eisgruber,
                                                          Judge; The Honorable Steven J.
                                                          Rubick, Magistrate




Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015       Page 1 of 7
                                             Case Summary
[1]   Curtis Hardaway appeals the post-conviction court’s denial of his petition for

      post-conviction relief. We affirm.


                                                     Issues
[2]   Hardaway raises several issues, which we consolidate and restate as:


                       I.      whether Hardaway received ineffective
                               assistance of trial counsel; and

                       II.     whether Hardaway’s guilty plea was
                               involuntary.

                                                     Facts
[3]   In 2006, the State charged Hardaway with the murder of Patricia Overbuy. In

      2007, Hardaway pled guilty as charged. At the sentencing hearing, the trial

      court found no aggravators and found two mitigators: (1) Hardaway’s

      allegation that he suffered from untreated bipolar disorder and was depressed

      because of his incarceration; and (2) the fact that Hardaway accepted

      responsibility by pleading guilty. The trial court sentenced him to forty-five

      years in the Department of Correction and recommended that Hardaway

      receive mental health treatment. Hardaway did not file a direct appeal.


[4]   In 2012, Hardaway filed a petition for post-conviction relief. Hardaway alleged

      that: (1) his trial counsel was ineffective because she failed to investigate and

      discover Hardaway’s mental health history, which according to Hardaway

      includes paranoid schizophrenia, bipolar mania, and suicidal tendencies; and


      Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015   Page 2 of 7
      (2) his guilty plea was not knowing, voluntary, and intelligent because he was

      incompetent and insane at the time of the offense and the guilty plea.

      Hardaway filed a motion to proceed via affidavit, which the post-conviction

      court granted. However, neither Hardaway nor the State filed any affidavits.

      The post-conviction court entered findings of fact and conclusions of law

      denying Hardaway’s petition for post-conviction relief. Hardaway now

      appeals.


                                                   Analysis
[5]   Hardaway argues that the post-conviction court’s denial of his petition is clearly

      erroneous. A court that hears a post-conviction claim must make findings of

      fact and conclusions of law on all issues presented in the petition. Pruitt v. State,

      903 N.E.2d 899, 905 (Ind. 2009) (citing Ind. Post-Conviction Rule 1(6)). “The

      findings must be supported by facts and the conclusions must be supported by

      the law.” Id. Our review on appeal is limited to these findings and conclusions.

      Id. Because the petitioner bears the burden of proof in the post-conviction

      court, an unsuccessful petitioner appeals from a negative judgment. Id. (citing

      P-C.R. 1(5)). “A petitioner appealing from a negative judgment must show that

      the evidence as a whole ‘leads unerringly and unmistakably to a conclusion

      opposite to that reached by the trial court.’” Id. (quoting Allen v. State, 749

      N.E.2d 1158, 1164 (Ind. 2001), cert. denied). Under this standard of review,

      “[we] will disturb a post-conviction court’s decision as being contrary to law

      only where the evidence is without conflict and leads to but one conclusion,

      and the post-conviction court has reached the opposite conclusion.” Id.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015   Page 3 of 7
                                   I. Ineffective Assistance of Counsel

[6]   Hardaway first argues that his trial counsel was ineffective. To prevail on a

      claim of ineffective assistance of counsel, a petitioner must demonstrate both

      that his or her counsel’s performance was deficient and that the petitioner was

      prejudiced by the deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102,

      106 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

      2052, 2064 (1984)), cert. denied. A counsel’s performance is deficient if it falls

      below an objective standard of reasonableness based on prevailing professional

      norms. French v. State, 778 N.E.2d 816, 824 (Ind. 2002). 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.” Strickland, 466

      U.S. at 694, 104 S. Ct. at 2068. Failure to satisfy either prong will cause the

      claim to fail. Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).


[7]   A post-conviction claim challenging a conviction pursuant to a guilty plea is

      examined under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes

      two main types of ineffective assistance of counsel cases: (1) failure to advise

      the defendant on an issue that impairs or overlooks a defense, and (2) an

      incorrect advisement of penal consequences. Smith v. State, 770 N.E.2d 290,

      295 (Ind. 2002). In order to set aside a conviction because of an attorney’s

      failure to raise a defense, a petitioner who has pled guilty must establish that a



      Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015   Page 4 of 7
      defense was overlooked or impaired and that the defense would likely have

      changed the outcome of the proceeding. Segura, 749 N.E.2d at 499.


[8]   On appeal, Hardaway argues that his trial counsel was ineffective because she

      failed to investigate his mental health history, failed to interview Hardaway,

      failed to timely file an insanity defense, and failed to obtain a competency

      examination. The post-conviction court rejected Hardaway’s argument. The

      post-conviction court concluded that Hardaway had failed “to specify how

      additional investigation would have led to his acquittal” and had “presented no

      evidence of an overlooked or impaired defense, much less evidence of one that

      would have led to a reasonable probability of success at trial.” App. p. 72.

      Further, the post-conviction court concluded that, based on the pre-sentence

      investigation report and the sentencing order, “it is apparent that Defendant’s

      mental health issues were raised and considered before sentencing.” Id.


[9]   Hardaway makes only unsupported allegations of his mental health issues. He

      presented no evidence concerning his mental health and no evidence that an

      insanity defense would have been successful. Hardaway had the burden of

      presenting evidence to support his allegations, and he did not meet his burden.

      We cannot say that the post-conviction court’s order is clearly erroneous.


                                       II. Involuntary Guilty Plea

      Next, Hardaway argues that his guilty plea was unknowing, involuntary, and

      unintelligent because he was “totally incompetent and legally insane at the time

      of the charged incident and at the time of the guilty plea proceedings.”


      Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015   Page 5 of 7
       Appellant’s Br. p. 11. The post-conviction court rejected his claim. The post-

       conviction court concluded:

               The pending petition does not allege any deficiency in the advisements
               the trial court made to Defendant regarding his plea, and Defendant
               has presented no evidence of any such deficiency. Instead, the petition
               contains nothing more than an unsupported assertion that Defendant
               was suffering from mental health problems that prevented him from
               comprehending the proceedings. This claim is belied by the available
               record in this case:
                        “DEFENDANT ADVISED OF RIGHTS/POTENTIAL
                        PENALTIES. FACTUAL BASIS GIVEN. DEFT.
                        AGREES AND COURT FINDS FACTUAL EXISTS.
                        Court finds Defendant understands rights and knowingly
                        and voluntarily waives rights.” CCS (January 29, 2007).
               Given the complete absence of evidence that the trial court did not
               conduct such a review, together with the fact that Defendant’s self-
               serving allegations are not the “specific facts” required to mount a
               successful post-conviction challenge to a guilty plea, the Court finds
               that this claim fails.
       App. p. 70.


[10]   Hardaway’s unsupported allegations of insanity and incompetency are simply

       insufficient to demonstrate that his guilty plea was involuntary. Hardaway

       presented no evidence showing that he was insane or incompetent at the

       relevant times, and the post-conviction court’s denial of Hardaway’s argument

       is not clearly erroneous.


                                                 Conclusion
[11]   The post-conviction court properly denied Hardaway’s petition for post-

       conviction relief. We affirm.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1404-PC-261 | February 24, 2015   Page 6 of 7
[12]   Affirmed.



       May, J., and Pyle, J., concur.




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