                                                                 FILED
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this Memorandum Decision shall not be
regarded as precedent or cited before
                                                             Mar 14 2012, 9:24 am
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APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

DAVID MARZINI                                   GREGORY F. ZOELLER
Pendleton, Indiana                              Attorney General of Indiana

                                                GEORGE P. SHERMAN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID MARZINI,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 20A03-1102-PC-64
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE ELKHART CIRCUIT COURT
                         The Honorable Terry C. Shewmaker, Judge
                      Cause Nos. 20C01-0505-FA-85, 20C01-1004-PC-9



                                      March 14, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       David Marzini, pro se, appeals the post-conviction court’s denial of his petition for

post-conviction relief. Marzini raises three issues which we revise and restate as:

       I.        Whether the court erred in finding that Marzini’s plea of guilty was
                 knowingly and voluntarily entered;

       II.       Whether the court erred in denying Marzini’s request for a change of
                 judge; and

       III.      Whether the court abused its discretion in denying Marzini’s request
                 to issue a subpoena.

We affirm.

       The relevant facts of Marzini’s offense were set forth in this court’s opinion on

direct appeal of his sentence.

               Marzini lived at 51905 Downey Street, Elkhart, Indiana. On May 9,
       2005, the Elkhart County drug task force obtained a search warrant for
       Marzini’s residence. Informants advised police that Marzini owned a
       Rottweiler dog and several firearms. Upon execution of the search warrant,
       the police found numerous weapons in the home, including but not limited
       to, firearms and ammunition, a Taser, a hunting knife, and a throwing star.
       The police also found a large quantity of cash, and ingredients and evidence
       of manufacturing methamphetamine.

Marzini v. State, No. 20A04-0602-CR-91, slip op. at 1 (Ind. Ct. App. Feb. 13, 2007),

trans. denied.

       In May 2005, the State charged Marzini with possession of methamphetamine

weighing three grams or more, with intent to deliver, as a class A felony. On November

7, 2005, Marzini pled guilty as charged. Id. On December 21, 2005, the court sentenced

Marzini to forty years with eight years suspended. Id. Judge Terry Shewmaker presided

over Marzini’s trial and sentencing hearing. Marzini appealed his sentence, and this

court affirmed. Id. at 2.

                                               2
         On April 5, 2010, Marzini filed a verified petition for post-conviction relief

together with a memorandum of law alleging that his guilty plea was not knowingly and

voluntarily made. Judge Shewmaker was the presiding judge in the post-conviction

proceedings. Also on April 5, 2010, Marzini filed a request for change of judge together

with an affidavit. On April 6, 2010, the court denied Marzini’s request for change of

judge.

         On May 10, 2010, Marzini filed a request for issuance of subpoenas and an

affidavit which requested the court to issue subpoenas for several witnesses, including

Judge Shewmaker, in the evidentiary hearing. The court denied Marzini’s request with

respect to Judge Shewmaker.

         On June 25, 2010, Marzini filed a request to amend his petition for post-conviction

relief to address whether the State failed to abide by the terms of the plea agreement. On

July 14, the State filed an answer to Marzini’s request to amend his petition.

         On July 22, 2010, the court held an evidentiary hearing on Marzini’s petition for

post-conviction relief. On January 21, 2011, the court issued an order including findings

of fact and conclusions of law denying Marzini’s petition.1 Additional facts will be

provided as necessary.

         Before discussing Marzini’s allegations of error, we note that although Marzini is

proceeding pro se, such litigants are held to the same standard as trained counsel and are

required to follow procedural rules. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App.


         1
           In its January 21, 2011 order, the court indicated that Marzini’s June 25, 2010 request to amend
his petition for post-conviction relief was granted.

                                                    3
2004), trans. denied. We also note the general standard under which we review a post-

conviction court’s denial of a petition for post-conviction relief. 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); Ind.

Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the

petitioner stands in the position of one appealing from a negative judgment. Fisher, 810

N.E.2d at 679. 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. Further, the post-conviction court in this case entered findings

of fact and conclusions thereon. Id. ―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. In this review, we accept

findings of fact unless clearly erroneous, but we accord no deference to conclusions of

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

credibility of witnesses. Id.

                                                     I.

       The first issue is whether the post-conviction court erred in finding that Marzini’s

plea of guilty was knowingly and voluntarily entered. In his petition for post-conviction

relief, Marzini argued that his ―guilty plea was accepted in violation of I.C. 35-35-3-3‖2


       2
           Ind. Code § 35-35-3-3 provides in part:

       (a)       No plea agreement may be made by the prosecuting attorney to a court on a
                 felony charge except:

                 (1)     in writing; and
                                                     4
and that he ―relied upon the State’s promise of sentencing which was never (1) Filed with

the court, and (2) Never entered before [he] entered his plea of guilty.‖ Appellant’s

Supplemental Appendix at 93. Marzini argued that ―[t]he failure of the trial court to

advise [him] that the State had filed no written recommendation as required by statute

made the defendant’s plea of guilty involuntary.‖ Id. Marzini also argued that the State

failed to abide by the original terms of the plea agreement.

       The court’s January 21, 2011 order denying Marzini’s petition for post-conviction

relief included the following findings and conclusions:

       11.    In the instant case, [Marzini] contends that his conviction should be
              set aside because his plea of guilty was not made knowingly and
              voluntarily because the agreement between himself and the State
              regarding sentencing was not reduced to writing and filed with the
              trial court. Further, [Marzini] contends that the court erred in failing
              to advise him that no written plea had been filed, and that the State
              failed to abide by the terms of its promise that it would recommend
              that the sentence imposed would not exceed thirty-five (35) years.

       12.    In support of his argument, [Marzini] offered the testimony of his
              trial attorney, Robert W. Miller. Attorney Miller testified that there
              was no written plea agreement; however, [he] confirmed that the
              State orally agreed that if [Marzini] entered a plea of guilty, the State


              (2)     before the defendant enters a plea of guilty.

              The plea agreement shall be shown as filed, and if its contents indicate that the
              prosecuting attorney anticipates that the defendant intends to enter a plea of
              guilty to a felony charge, the court shall order the presentence report required by
              IC 35-38-1-8 and may hear evidence on the plea agreement.

                                               *****

       (c)    A plea agreement in a misdemeanor case may be submitted orally to the court.

                                               *****

       (e)    If the court accepts a plea agreement, it shall be bound by its terms.

                                                   5
      would recommend no more than a thirty-five (35) year sentence.
      Attorney Miller testified that he advised [Marzini] accordingly.
      Attorney Miller testified that he also explained to [Marzini] that a
      recommendation by the State in no way secured a sentence, and that
      the sentence was ultimately left to the judge who could impose the
      full range of sentence for an A Felony.

13.   The record herein establishes that the court expressly told [Marzini]
      that its understanding of the agreement was that the full range of
      penalty would be available to the court upon sentencing. When
      asked if that was also his understanding, [Marzini] responded, ―yes,
      sir.‖ (Transcript, p 33, ll 8-17). The court also specifically advised
      [Marzini] that there was no plea agreement, and proceeded to inquire
      if it was his intention to enter a plea of guilty rather than have his
      jury trial. [Marzini] responded, ―Yes.‖ (Transcript, p 36, ll 6-12).
      The court inquired of [Marzini] as to whether he understood the
      charge against him, fully advised [Marzini] of all his constitutional
      rights and the impact of pleading guilty, and explained the full range
      of penalty for the offense committed. Moreover, when asked by the
      court if his plea of guilty was his own free and voluntary act,
      [Marzini] responded, ―Yes.‖           (Transcript, p 43, ll 6-8).
      Additionally, two letters [Marzini] wrote and sent to the court were
      admitted into evidence.          Those letters reflect [Marzini’s]
      understanding that he admitted pleading guilty and that he
      understood and accepted his sentence, which clearly contradicts
      [Marzini’s] testimony in this proceeding that he did not understand
      his plea.

14.   There is ample evidence to show that [Marzini] and his attorney
      discussed the nature of the agreement reached with the State, and
      that it was [Marzini’s] intention to plead guilty. [Marzini] received a
      forty (40) year sentence, with eight (8) years suspended, for a total
      of thirty-two (32) years executed.              [Marzini] raised the
      reasonableness of his sentence on direct appeal and the sentence was
      affirmed. The State did not argue for an executed sentence greater
      than thirty-five (35) years, nor did the court impose an executed
      sentence greater than thirty-five (35) years.

15.   [Marzini] has failed to meet the burden of proving by a
      preponderance of the evidence that the absence of a written plea
      agreement was fatal to or in any way rendered his plea unknowing or
      involuntary. Moreover, [Marzini] has not demonstrated that the
      State of Indiana or the court failed to abide by the terms of the

                                     6
              agreement herein. Accordingly, [Marzini] is not entitled to the relief
              sought.

Appellant’s Appendix at 3-5.

       Marzini essentially argues on appeal that the fact that the prosecutor did not file a

written plea agreement as required by Ind. Code § 35-35-3-3 constitutes grounds for

vacating his plea of guilty. Marzini further argues that the State agreed to recommend a

sentence of no more than thirty-five years and to not ―rant and rave‖ at the time of

sentencing and that the State failed to abide by the terms of the plea agreement because it

recommended that he be sentenced to thirty-five years executed and the prosecutor made

comments in addition to its sentence recommendation which ―was all overkill and

consisted of ranting at the sentencing hearing.‖ Appellant’s Brief at 14.

       However, the record shows that, at the post-conviction hearing, the court noted

that it had stated at Marzini’s guilty plea hearing that ―[i]t’s also my understanding that

the full range of penalty will be available to the Court, however, there will be a

sentencing hearing in this case yet to be scheduled,‖ that ―[t]he sentencing hearing will be

an opportunity for both sides to present evidence,‖ and ―[i]s that your understanding,‖

and that Marzini answered ―yes, sir.‖ Post-Conviction Hearing Transcript at 12. The

court also indicated that it had asked ―[i]s there any other term relating to this plea

agreement,‖ and Marzini stated ―no.‖ Id. Marzini indicated that his trial counsel stated

―[t]here are no other promises other than the State will make a recommendation at the

time of sentencing.‖ Id.

       In addition, Marzini’s trial counsel testified that the deputy prosecutor had offered

to ―recommend to the Judge that [Marzini] receive no more than 35 years‖ if Marzini
                                         7
were to enter a plea of guilty. Id. at 18. Marzini’s counsel further testified that he had

explained to Marzini the prosecutor’s offer, ―what a recommendation meant,‖ that ―the

Judge still had the power to give [him] the full range of possible penalties as permitted by

law,‖ and that ―in [his] experience the Judge put great weight on the recommendations of

the prosecuting attorney.‖ Id. Further, at sentencing, the prosecutor recommended that

Marzini receive ―35 years executed.‖ Appellant’s Supplemental Appendix at 63 (citing

the Sentencing Transcript). The court ultimately sentenced Marzini to forty years with

eight years suspended.

       We conclude that Marzini failed to demonstrate that he suffered any harm or

prejudice as a result of any failure of the prosecutor to file a written plea agreement with

the court prior to Marzini’s guilty plea hearing or that any such failure rendered his plea

of guilty unknowingly or involuntarily entered. See Davis v. State, 418 N.E.2d 256,

260 (Ind. Ct. App. 1981) (concluding ―that it was not reversible error for the court to

accept Davis’s plea of guilty absent a written recommendation having been filed by the

state‖ and that ―Davis has alleged no harm to himself as a result of the court not requiring

the agreement to be reduced to writing‖). Further, as set forth in the court’s January 21,

2011 order, the record amply demonstrates the voluntary nature of Marzini’s plea. In

addition, our review of the record does not indicate that the State failed to comply with or

fulfill its promises regarding a sentencing recommendation as described by Marzini’s

counsel at the post-conviction hearing. Based upon the record, we cannot say that the

evidence as a whole unerringly and unmistakably leads to a conclusion opposite that

reached by the post-conviction court. Accordingly, we find no reversible error.

                                             8
                                               II.

         The next issue is whether the court erred in denying Marzini’s request for a change

of judge. Marzini argues that the court erroneously denied his request for a change of

judge.

         Post-Conviction Rule 1(4)(b) provides that a petitioner’s motion for change of

judge ―shall be granted if the historical facts recited in the affidavit [filed in support of

the motion] support a rational inference of bias or prejudice.‖ See Pruitt v. State, 903

N.E.2d 899, 938-939 (Ind. 2009), reh’g denied.

         This rule requires the judge to examine the affidavit, treat the historical
         facts recited in the affidavit as true, and determine whether these facts
         support a rational inference of bias or prejudice. A change of judge is
         neither automatic nor discretionary, but calls for a legal determination by
         the trial court. It is presumed that the PC court is not biased against a party
         and disqualification is not required under the rule unless the judge holds a
         personal bias or prejudice. Typically, a bias is personal if it stems from an
         extrajudicial source—meaning a source separate from the evidence and
         argument presented at the proceedings.

Id. at 939 (internal quotation marks, brackets, and citations omitted).

         Here, on April 5, 2010, Marzini filed a request for change of judge together with

an affidavit which stated that Judge Shewmaker ―has a personal bias and/or prejudice‖

against him. Appellant’s Supplemental Appendix at 119. Marzini’s affidavit further

stated that Marzini ―alleges in his post-conviction petition that Judge Shewmaker failed

to enforce the statutory requirements of the plea bargaining process;‖ that Marzini

―believes the Judge was instrumental in depriving him of his right to due process of

law;‖ that Judge Shewmaker ―is likely to be called by [Marzini] as a witness at the

                                               9
evidentiary hearing;‖ that Marzini ―believes that Judge Shewmaker conspired [with the]

State to deprive him of his right to due process of law;‖ and that Marzini ―believes that

Judge Shewmaker has personal knowledge concerning disputed evidentiary facts

regarding these post-conviction allegations and proceedings, namely, that [Marzini’s]

plea of guilty was not knowingly and voluntarily entered.‖ Id.

       On April 6, 2010, the court issued an order denying Marzini’s request for change

of judge which provided in part:

               In reviewing [Marzini’s] Request for Change of Judge, the Court
       notes [Marzini] alleges in his Affidavit that the presiding judge in this
       action should have intervened in the plea bargaining process and the Court
       notes it is not a part of the plea bargaining process. The Court also notes
       that it was not involved in any way, shape or form in the plea bargaining
       process and did no acts that would deprive [Marzini] of his right to due
       process of law. The Court further notes that [Marzini] was in fact
       represented by counsel of his choosing at the time of entry of his plea and
       at the time of his sentencing. The Court further notes that the presiding
       judge has no personal knowledge concerning disputed evidentiary facts as
       alleged by [Marzini]. The Court now denies [Marzini’s] Request for
       Change of Judge as stated herein for the following reasons:

       1.     The presiding judge has no bias, prejudice or feelings one way or the
              other as to [Marzini].

       2.     The Court speaks through its record and has no personal knowledge
              concerning the facts of this case other than the facts stated in open
              court by [Marzini], [Marzini’s] counsel or counsel for the State[.]
              [T]he Court notes such statements are not within the presiding
              judge’s personal knowledge other than by a review of the record.

       3.     The Court further notes it is not a material witness in this matter, has
              no bias or prejudice against [Marzini].

       For all these reasons [Marzini’s] Request for Change of Judge is denied.

Id. at 120-121.


                                             10
       In his affidavit in support of his motion, Marzini did not set forth specific facts

which demonstrated that Judge Shewmaker had personal knowledge of any disputed facts

regarding the post-conviction proceedings or Marzini’s case or that Judge Shewmaker

was prejudiced against Marzini. Based upon the record, we cannot say that the court

erred in denying Marzini’s motion for change of judge.           See Pruitt, 903 N.E.2d at

939 (noting, where Pruitt’s post-conviction review judge was the same judge who

presided over his trial, that ―Pruitt’s affidavit in support of his motion for change of judge

shows no historical facts that demonstrate personal bias or prejudice on the part of [the

trial judge]‖ and that he ―merely cites [the judge’s] trial rulings against him, which are

not indicia of personal bias‖ and concluding ―that Pruitt was provided with a full and fair

PCR hearing before an impartial judge‖).

                                             III.

       The next issue is whether the court abused its discretion in denying Marzini’s

request to issue a subpoena. Marzini argues that the court erroneously denied his request

for an issuance of a subpoena for Judge Shewmaker.             The court has discretion to

determine whether to grant or deny the petitioner’s request for a subpoena. Johnson v.

State, 832 N.E.2d 985, 994 (Ind. Ct. App. 2005), trans. denied. An abuse of discretion

has occurred if the court’s decision is against the logic and effect of the facts and

circumstances before the court. Id. Ind. Post-Conviction Rule 1, § 9(b) provides in

pertinent part:

       If the pro se petitioner requests issuance of subpoenas for witnesses at an
       evidentiary hearing, the petitioner shall specifically state by affidavit the
       reason the witness’ testimony is required and the substance of the witness’
       expected testimony. If the court finds the witness’ testimony would be
                                             11
       relevant and probative, the court shall order that the subpoena be issued. If
       the court finds the proposed witness’ testimony is not relevant and
       probative, it shall enter a finding on the record and refuse to issue the
       subpoena.

       On May 10, 2010, Marzini filed a request for issuance of subpoenas and an

affidavit.   Marzini stated that ―each requested witness’ testimony is relevant and

probative of the issues that will be raised at the evidentiary hearing in this cause‖ and that

―[s]ubpoenas are requested for the following material witnesses: . . . Honorable Terry C.

Shewmaker.‖ Appellant’s Supplemental Appendix at 127. The court denied Marzini’s

request with respect to Judge Shewmaker. Specifically, the May 10, 2010 entry in the

chronological case summary provides in part: ―Court denies [Marzini’s] Request for

Subpoena for the presiding judge, the Court noting that the presiding judge speaks

through its entry and record and cannot be called as a witness or disqualified from

presiding as a result of being called as a witness.‖ Id. at 10. We observe that the post-

conviction court, presided over by Judge Shewmaker, could refer to the record and the

CCS. Based upon the record, we cannot say under the circumstances that Marzini has

demonstrated that the court abused its discretion in denying his request to issue the

subpoena he requested.

       For the foregoing reasons, we affirm the denial of Marzini’s petition for post-

conviction relief.

       Affirmed.

MAY, J., and CRONE, J., concur.




                                             12
