Pursuant to Ind. Appellate Rule 65(D),

                                                           FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                         Jan 20 2012, 8:30 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
                                                                CLERK
case.                                                         of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

THOMAS E. Q. WILLIAMS                           GREGORY F. ZOELLER
Greenfield, Indiana                             Attorney General of Indiana

                                                JODI KATHRYN STEIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

OPIE W. GLASS,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 30A05-1107-PC-373
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE HANCOCK CIRCUIT COURT
                         The Honorable Richard D. Culver, Judge
                             Cause No. 30C01-0911-FC-267


                                     January 20, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
                             STATEMENT OF THE CASE

      Opie Glass appeals the denial of his petition for post-conviction relief.

      We affirm.

                                         ISSUE

             The sole issue for our review is whether the post-conviction court
      erred in denying Glass’s petition.
                                         FACTS

              On November 11, 2009, Glass and his girlfriend, Teri Wildman
      (“Wildman”) decided to break into a business in Greenfield, Indiana in
      order to obtain money to buy crack cocaine. At approximately 2:00 a.m.,
      Glass and Wildman drove to Wal-Mart, where they stole two flashlights for
      use in committing the burglary. The two then proceeded to the combined
      retail location of the Heavenly Scent Candle Company and Martin Military
      Surplus store (“the Store”), where Wildman had been employed previously.
      Wildman used a key she had retained from her employment at the Store to
      open the door, but Glass became concerned that an alarm may have been
      activated, so the two returned to their car and drove to a nearby parking lot.
      After waiting for about forty-five minutes, the pair returned to the Store and
      saw that no police had arrived. The two then entered the Store, and
      Wildman stood watch as Glass filled a duffle bag with numerous items,
      including a laptop computer, pocket knives, and a credit card. Glass and
      Wildman then placed the items in their car and left.

Glass v. State, Cause Number 30A01-1005-CR-247, slip op. at 2 (Ind. Ct. App.

December 30, 2010).

      Glass was subsequently convicted by a jury of burglary as a class C felony and

two counts of theft as class D felonies. He was also adjudicated to be an habitual

offender. The trial court sentenced him to eight years for burglary enhanced by six years

for the habitual offender determination and three years for each of the theft convictions.




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The trial court further ordered all sentences to run concurrently for a total sentence of

fourteen years.

       On direct appeal in 2010, Glass argued that there was insufficient evidence to

support his convictions of burglary and theft and that those convictions violated Indiana’s

prohibition against double jeopardy. This Court affirmed Glass’s convictions.

       In 2011, Glass filed a petition for post-conviction relief wherein he argued that he

received ineffective assistance of trial counsel. Specifically, Glass argued that counsel

would not allow him to testify because of his prior criminal history. At the post-

conviction hearing, Glass testified that he told trial counsel several times that he wanted

to testify. According to Glass, counsel would not put him on the witness stand because

his “criminal history would hang [him].” Tr. at 8. Trial counsel was not called to testify

at the hearing, and the trial transcript was not admitted into evidence.        The post-

conviction court denied Glass’s petition.       Specifically, the court concluded that

considering Glass’s lengthy record and demeanor, trial counsel’s recommendation to

keep Glass off the witness stand was not inappropriate. Glass appeals the denial of his

petition.

                                       DECISION

       Glass argues that the post-conviction court erred in denying his petition for post-

conviction relief. Post-conviction proceedings do not grant a petitioner a “super appeal”

but are limited to those issues available under the Indiana Post-Conviction Rules.

Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010).             Post-conviction

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proceedings are civil in nature, and the petitioner bears the burden of proving his grounds

by a preponderance of the evidence. Id. A petitioner who appeals the denial of a post-

conviction relief petition faces a rigorous standard of review because the reviewing court

may consider only the evidence and reasonable inferences supporting the judgment of the

post-conviction court.   Id. A petitioner who was denied relief must show that the

evidence as a whole leads unerringly and unmistakably to an opposite conclusion than

that reached by the post-conviction court. Id.

       Glass specifically argues that the post-conviction court erred in denying his

petition because trial counsel was ineffective for failing to allow him to testify. However,

Glass did not present testimony from his trial counsel at the post-conviction hearing.

When counsel is not called as a witness to testify in support of petitioner’s arguments, the

post-conviction court may infer that counsel would not have corroborated the petitioner’s

allegations. Oberst v. State¸ 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied.

The post-conviction court made such an inference here. See id.

       Further, Glass’s claim asks this court to assess trial counsel’s strategy, which we

will not do.    See Ford v. State, 523 N.E.2d 742, 746 (Ind. 1988).              Counsel’s

recommendation that Glass not testify was a tactical choice to protect his client from

exposure of his criminal record. See id. That choice should not now be second guessed

because Glass was convicted. See id. Glass has failed to show that the evidence as a

whole leads unerringly and unmistakably to an opposite conclusion than that reached by

the post-conviction court. The post-conviction court did not err in denying his petition.

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      Affirmed.

BAKER, J., and BAILEY, J., concur.




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