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:

JUAN EMERSON                                     GREGORY F. ZOELLER
Michigan City, Indiana                           Attorney General of Indiana

                                                 IAN MCLEAN
                                                 Deputy Attorney General

                                                                               FILED
                                                 Indianapolis, Indiana

                                                                           Mar 19 2012, 9:27 am
                               IN THE
                    COURT OF APPEALS OF INDIANA                                    CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




JUAN EMERSON,                                    )
                                                 )
       Appellant- Defendant,                     )
                                                 )
              vs.                                )      No. 49A05-1102-PC-95
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee- Plaintiff,                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Lisa F. Borges, Judge
                    The Honorable Stanley E. Kroh, Master Commissioner
                            Cause No. 49G04-9604-PC-53725



                                       March 19, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issue

       In 2003, Juan Emerson, represented by counsel, petitioned for post-conviction

relief after the trial court sentenced him to an aggregate 156-year sentence. The post-

conviction court reduced Emerson’s aggregate sentence to 95 years. In 2004, Emerson,

again represented by counsel, filed a second petition for post-conviction relief, and the

post-conviction court reduced Emerson’s aggregate sentence to 90 years.             In 2009,

Emerson, acting pro se, filed a third petition for post-conviction relief, and an evidentiary

hearing was held in 2011.        The post-conviction court denied Emerson’s petition.

Emerson raises two issues for our review, which we consolidate and restate as whether

the 2011 post-conviction court erred in concluding that Emerson failed to prove his

counsel provided inadequate representation regarding his petitions for post-conviction

relief in 2003 and 2004. Concluding Emerson failed to prove his claim of ineffective

assistance of counsel and the post-conviction court did not err, we affirm.

                               Facts and Procedural History

       In 1996, Emerson was charged with criminal deviate conduct, a Class A felony;

burglary, a Class B felony; two counts of robbery, both Class C felonies; rape, a Class A

felony; two counts of criminal deviate conduct, both Class A felonies; burglary, a Class B

felony; and robbery, a Class C felony. Thereafter, the trial court severed the first four

charges from the last five charges and ordered that they be tried separately. After a jury

trial in 1997, Emerson was found guilty of the first four charges.            The trial court

sentenced him to consecutive sentences of fifty years for criminal deviate conduct,

twenty years for burglary, and eight years for each robbery conviction. The following

year, after a second jury trial, Emerson was found guilty of rape, one count of criminal
                                             2
deviate conduct, and burglary. He was found not guilty of the second count of criminal

deviate conduct and robbery. The trial court sentenced Emerson to fifty years for rape

and fifty years for criminal deviate conduct, to be served concurrently, and to twenty

years for burglary, to be served consecutively. Emerson’s sentences from each trial were

ordered to be served consecutively, for an aggregate sentence of 156 years.

       This court affirmed Emerson’s first four convictions in 1998 and his last three

convictions in 1999. See Emerson v. State, 699 N.E.2d 796 (Ind. Ct. App. 1998) (Table);

Emerson v. State, 709 N.E.2d 758 (Ind. Ct. App. 1999) (Table), trans. denied. In 2003,

Emerson filed a petition for post-conviction relief challenging his sentences for his first

four convictions. An evidentiary hearing was held, and Emerson was represented by

James Acklin, a public defender. The post-conviction court granted Emerson’s petition

and amended his sentences to forty-five years for criminal deviate conduct, twenty years

for burglary, and eight years for each robbery conviction, all served concurrently. This

amended his aggregate sentence for his first four convictions from 86 years to 45 years.

       In 2004, Emerson filed a second petition for post-conviction relief, challenging his

sentences for his last three convictions. After an evidentiary hearing, at which Emerson

was again represented by Acklin, Emerson’s fifty-year sentences for both rape and

criminal deviate conduct in his second group of convictions were amended to forty-five

years each, and his sentences for all three convictions were ordered to be served

concurrently. Emerson’s sentence remained the same in all other respects. Thus, his

aggregate sentence for his last three convictions was reduced from 70 years to 45 years.

Emerson did not appeal the court’s determination.


                                            3
         In 2009, Emerson was authorized to file a third post-conviction relief petition.

Emerson claimed he received ineffective assistance of counsel regarding his earlier post-

conviction relief petitions because his attorney did not object to the sentences based on

Indiana Code section 35-50-1-2 and the post-conviction courts’ determinations were not

appealed.1       Emerson requested representation by the Office of the Indiana Public

Defender. Acklin appeared on Emerson’s behalf, but on the same day Emerson filed a

pro se notice with the court indicating his intent to call Acklin as a witness in support of

his petition. Thereafter, Acklin notified the post-conviction court that he wished to

withdraw and the court granted Acklin’s motion to withdraw. Acklin was required to

turn over his file to Emerson. In May 2011, the post-conviction court conducted an

evidentiary hearing on Emerson’s petition for post-conviction relief.

         At the third evidentiary hearing, Emerson stated his desire to call Acklin as a

witness. However, Acklin was not present at the hearing because he was not subpoenaed.

Emerson presented prison visitation records in attempt to show that Acklin never visited

him to determine whether he wanted to appeal after the post-conviction hearing. The

State requested the court take judicial notice of its case file, which the court did. The

parties then submitted proposed findings of fact and conclusions of law. The post-

conviction court entered findings of fact and conclusions of law denying Emerson’s third

petition. In pertinent part, the post-conviction court’s findings of fact include:

         1
           As the post-conviction court noted in its findings of fact, “[i]t is not entirely clear whether the Successive
Petition is directed toward Mr. Acklin’s performance as to Counts I through IV or as to the entirety of his
performance, thus this Court is addressing the entirety of the performance.” Appellants [sic] Appendix at 168 n.3.
In other words, Emerson did not specify in his third petition or evidentiary hearing whether he sought relief based on
his 2003 petition for post-conviction relief and subsequent hearing or his 2004 petition for post-conviction relief and
subsequent hearing. Nor does his appellate brief clarify which petition is the focus of this appeal. Nevertheless,
because the circumstances of each petition and subsequent hearing are quite similar and we can find no difference
between them relevant to Emerson’s arguments on appeal, we will proceed in our analysis by discussing each
simultaneously.
                                                           4
      2. Emerson filed a pro se Petition for Post-Conviction Relief on June 8,
      1999, regarding the convictions on Counts I through IV; subsequently, by
      counsel James T. Acklin with the Public Defender of Indiana, Emerson
      filed an Amended Petition for Post-Conviction Relief on June 23, 2003,
      regarding Counts I through IV, claiming as grounds for relief: a) the
      sentence was in excess of that allowed by statute, b) ineffective assistance
      of trial counsel for failing to object to the sentence in excess of that allowed
      by I.C. 35-50-1-2(a) (1994) and I.C. 35-50-2-4 (Supp. 1994), c) ineffective
      assistance of appellate counsel for failing to raise on appeal that the
      sentence was in excess of that allowed by I.C. 35-50-1-2(a) (1994) and I.C.
      35-50-2-4 (Supp. 1994).
              The Court conducted an evidentiary post-conviction relief hearing
      on October 8, 2003, as to Counts I through IV. As noted in the Court’s file,
      Mr. Acklin appeared on behalf of Emerson, and presented as evidence:
      record of proceedings, appellate briefs, direct appeal opinion, briefs and the
      decision in Richards v. State, Cause No. 49S00-9509-CR-01105, Slip. op.
      (Ind. June 13, 1997). Mr. Acklin also presented the testimony of trial
      counsel Kay Beehler and appellate counsel Aaron Haith. On November 7,
      2003, Petitioner by Mr. Acklin tendered a 10-page Proposed Findings of
      Fact and Conclusions of Law Granting Post-Convicition [sic] Relief, as
      well as a Petitioner’s Response to State’s Proposed Findings of Fact and
      Conclusions of Law on November 13, 2003.
      ***
      3. On March 24, 2004, Emerson by counsel James T. Acklin filed a
      Verified Motion for Leave to File Petition for Post-Conviction Relief, and a
      Petition for Post-Conviction Relief on April 14, 2004, as to Counts V, VI,
      and VIII. The Petition claimed as grounds for relief: a) ineffective
      assistance of trial counsel for failing to object to the sentence in excess of
      that allowed by I.C. 35-50-1-2(a) (1994) and I.C. 35-50-2-4 (Supp. 1994),
      b) ineffective assistance of appellate counsel for failing to raise on appeal
      that the sentence was in excess of that allowed by I.C. 35-50-1-2(a) (1994)
      and I.C. 35-50-2-4 (Supp. 1994).
              The Court conducted a post-conviction relief evidentiary hearing
      regarding Counts V, VI, and VIII, on September 22, 2004. As noted in the
      Court’s file, Petitioner, by counsel, presented documentary evidence in the
      form of the record of proceedings, briefs, direct appeal opinion and other
      appellate records, and affidavits from Petitioner’s trial and appellate
      counsels; the Court also took judicial notice of its file. Following said
      hearing, Petitioner by counsel Mr. Acklin filed Proposed Findings of Fact
      and Conclusions of Law on September 28, 2004; the State filed proposed
      findings and conclusions on October 22, 2004.

Appellants [sic] App. at 166-67.

      Emerson now appeals.
                                             5
                                           Discussion and Decision

                                            I. Standard of Review

         When reviewing appeals from a negative judgment delivered by the post-

conviction court, this court will reverse the denial of post-conviction relief only if the

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

reached by the post-conviction court. Davidson v. State, 763 N.E.2d 441, 443 (Ind.

2002), cert. denied, 537 U.S. 1122 (2003). The post-conviction court’s findings of fact

are accepted unless clearly erroneous, Ind. Trial Rule 52(A), but no deference is accorded

conclusions of law. Davidson, 763 N.E.2d at 443-44.

         The right to counsel in post-conviction proceedings is not guaranteed by the Sixth

Amendment of the United States Constitution or Article 1, Section 13 of the Indiana

Constitution. Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989). A post-conviction

proceeding is not generally regarded as a criminal proceeding. Id. Thus, it is not

required that the constitutional standards applied to ineffective assistance of counsel

challenges be applied when judging the actions of post-conviction counsel at the

appellate level.2 Id. Rather, we apply the standard that “if counsel in fact appeared and

represented the petitioner in a procedurally fair setting which resulted in a judgment of

the court, it is not necessary to judge his performance by the rigorous standard set forth”

for purely criminal proceedings. Id.; see also Hill v. State, 960 N.E.2d 141, 147 (Ind.

         2
            Specifically, the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), which Emerson
argues applies in this case, does not apply to our evaluation of the effectiveness of counsel in a post-conviction
proceeding. The Strickland standard requires that to prevail on a claim of ineffective assistance of counsel, a
defendant must show (1) the attorney’s performance was unreasonable based on prevailing professional norms and
(2) “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 688, 694.
                                                           6
2012) (reaffirming the Baum standard as the appropriate standard for evaluating post-

conviction counsel’s performance).

            II. Denial of Emerson’s Third Petition for Post-Conviction Relief

       Hill presented a factual scenario similar to this case. Hill was convicted of various

crimes and sentenced. 960 N.E.2d at 143. He did not timely appeal and, thus, his right to

do so expired pursuant to Appellate Rule 9(A)(5).         Id.   Thereafter, represented by

counsel, he filed a series of post-conviction relief petitions. Id. One such petition

requested permission to file a belated notice of appeal under Post-Conviction Rule 2. Id.

The post-conviction court held a hearing at which Hill was represented by counsel, and

the court denied Hill’s petition. Id. Hill failed to timely appeal the post-conviction

court’s denial of his petition for post-conviction relief. Id. Proceeding once again with

representation and under Post-Conviction Rule 2, Hill petitioned for permission to file a

belated notice of appeal of the post-conviction court’s denial of his previous request for

permission to file a belated notice of appeal of his convictions. Id. The post-conviction

court denied his second Post-Conviction Rule 2 petition. Id. at 143-44.

       Hill then filed a petition for post-conviction relief under Post-Conviction Rule 1,

claiming he received ineffective assistance of counsel when his counsel failed to timely

appeal the post-conviction court’s denial of his first petition under Post-Conviction Rule

2 which sought permission to file a belated notice of appeal of his convictions in the trial

court. Id. at 144. Our supreme court granted transfer and addressed an issue pertinent to

our case: “does P-C.R. 2 counsel violate the Baum standard if she fails to timely appeal a

denial of a P-C.R. 2 petition?” Id. at 148. The court first clarified that “the appropriate

inquiry is whether P-C.R. 2 counsel denied the criminal defendant of a procedurally fair
                                             7
setting during the entire course of the P-C.R. 2 proceeding, which includes the filing of

the petition and representation during a P-C.R. 2 hearing, if any.” Id. (emphasis in

original). This is in contrast to this court’s opinion in Hill, which focused its review

solely on whether the failure to timely appeal resulted in the attorney’s inability to appear

and represent Hill. Id. The supreme court concluded “Hill’s P-C.R. 1 petition [alleging

ineffective assistance of counsel] does not present any cognizable claim, as he alleges a

violation of Baum based solely on Attorney Reed’s failure to timely appeal the P-C.R. 2

denial. The proper route for Hill would have been to challenge . . . Reed’s performance

during the P-C.R. 2 proceedings as a whole.” Id. at 149-50 (emphasis in original).

       Hill is instructive in this case. Emerson argues “the failures by Emerson’s post-

conviction counsel to raise the issue [of whether his sentence was in error due to Indiana

Code section 35-50-1-2] through the appeals process denied Emerson’s right to effective

assistance of counsel; Emerson was highly prejudiced by counsel’s actions and was

denied a meaningful Post-Conviction hearing, [sic] and appellant [sic] hearing review.”

Brief of Appellant at 9. Rather than crafting an argument that he received ineffective

assistance of counsel under the Baum standard, Emerson attempts to argue what he would

have argued had he appealed the results of his previous petitions for post-conviction

relief: that, pursuant to Indiana Code section 35-50-1-2, his sentences should be reduced

even further than they were after his previous petitions for post-conviction relief. What

remains is essentially the same argument made in Hill: that he received ineffective

assistance of counsel because his post-conviction counsel failed to timely appeal the

results of his post-conviction petitions. As our supreme court concluded in Hill, this

argument is insufficient to reverse the post-conviction court’s 2011 denial of Emerson’s
                                             8
petition for post-conviction relief. Although Emerson states in his brief that he “was

denied a meaningful Post-Conviction hearing,” he does not support this contention other

than by arguing that his attorney did not appeal and should have done so, which our

supreme court determined was insufficient in Hill. Emerson has failed to meet his burden

on appeal.

       Nevertheless, assessing the evidence presented to the post-conviction court

regarding Emerson’s claim of ineffective assistance of counsel, we conclude Emerson

failed to establish at the evidentiary hearing that the Baum standard was not met.

Emerson did not provide evidence showing anything other than the fact that Emerson’s

counsel “in fact appeared and represented the petitioner in a procedurally fair setting

which resulted in a judgment of the court.” Baum, 533 N.E.2d at 1201. As the post-

conviction court stated in its findings, Emerson was represented by counsel regarding his

petitions for post-conviction relief filed in 2003 and 2004 and the respective subsequent

evidentiary hearings.    Various evidentiary exhibits were introduced and Emerson’s

counsel filed proposed findings of fact and conclusions of law pursuant to the court’s

request, and the court then issued its own findings of fact and conclusions of law in both

instances, granting Emerson’s petitions and reducing his sentence after both hearings.

Nothing suggests the procedure was in any way unfair in either case. Thus, even if

Emerson argued the post-conviction court erred in 2011 because the Baum standard was

not met in his prior petitions and hearings, we would affirm the post-conviction court’s

denial of his petition for post-conviction relief because the Baum standard was met

regarding his prior petitions for post-conviction relief.


                                              9
                                          Conclusion

       Pursuant to Hill, we conclude Emerson has failed to raise any cognizable claim.

Nevertheless, Emerson did not meet his burden at the most recent post-conviction hearing

of establishing that the Baum standard for ineffective assistance of counsel was not

satisfied for his prior petitions for post-conviction relief. We therefore affirm the denial

of his petition for post-conviction relief.

       Affirmed.

NAJAM, J., and VAIDIK, J., concur.




                                              10
