MEMORANDUM DECISION
                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                       Feb 28 2018, 11:39 am
this Memorandum Decision shall not be                             CLERK
regarded as precedent or cited before any                     Indiana Supreme Court
                                                                 Court of Appeals
court except for the purpose of establishing                       and Tax Court

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


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Dewayne V. Adamson                                       Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dewayne Vernon Adamson,                                  February 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         53A01-1608-PC-1912
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        The Honorable Kenneth G. Todd,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         53C03-1104-PC-608



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018   Page 1 of 9
                                Case Summary and Issue
[1]   Dewayne Adamson appeals pro se the post-conviction court’s denial of his

      petition for post-conviction relief, raising two issues for our review, which we

      consolidate and restate as whether the post-conviction court erred in denying

      his petition for post-conviction relief. Concluding the post-conviction court did

      not err, we affirm the denial of his petition.



                            Facts and Procedural History
[2]   We summarized the facts of this case in Adamson’s direct appeal:


              On August 6, 2008, the Monroe County Sheriff’s Department
              received a report from Adamson’s ex-girlfriend claiming that he
              and a friend had abducted her, sexually and physically assaulted
              her, and fired a gun at her. Later that day, Adamson was
              arrested on an alleged probation violation and his residence was
              searched, and officers found a loaded AK-47. Adamson has
              several prior felony convictions, including a 2001 conviction for
              Class B felony criminal confinement.

              On August 12, 2008, the State charged Adamson with Class A
              felony rape, Class B felony criminal confinement, and the SVF
              charge. The State subsequently filed two amended informations,
              and Adamson ultimately stood charged with six counts of Class
              A felony criminal deviate conduct, Class B felony carjacking,
              Class B felony criminal confinement, Class C felony
              intimidation, two counts of Class D felony criminal recklessness,
              Class D felony strangulation, Class A felony attempted murder,
              and the Class B felony SVF charge. The State also alleged that
              Adamson was an habitual offender.

              On October 7, 2009, Adamson pled guilty to the SVF charge and
              to being an habitual offender. The State agreed to dismiss the
              remaining charges. It is unclear precisely why the State did not
              wish to pursue the charges on any of the more serious allegations

      Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018   Page 2 of 9
              against Adamson, although there are suggestions in the record
              that the alleged victim did not want to testify against him.

              ***

              The trial court sentenced Adamson to twenty years for the SVF
              conviction, enhanced by thirty years for the habitual offender
              admission, for a total of fifty years.


      Adamson v. State, No. 53A01-1002-CR-88, slip op. at *1 (Ind. Ct. App. Nov. 30,

      2010), trans. denied. We affirmed Adamson’s sentence on direct appeal. Id. at

      *3.


[3]   On April 6, 2011, Adamson, pro se, filed a petition for post-conviction relief.

      Adamson alleged he did not knowingly, voluntarily, or intelligently waive his

      constitutional rights, the trial court failed to establish a factual basis for his

      guilty plea, and he was inadequately informed of the possible sentences before

      accepting the guilty plea. On August 3, 2015, Adamson, by counsel, filed a

      motion to amend his petition. Adamson’s amended petition dropped his claim

      of waiver and receiving inadequate information regarding possible sentences

      and added a claim of ineffective assistance of trial counsel. The post-conviction

      court granted his motion to amend and set his petition for post-conviction relief

      for a hearing on November 3, 2015. On May 23, 2016, the post-conviction

      court issued its order denying Adamson’s petition. Adamson now appeals.



                                 Discussion and Decision



      Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018   Page 3 of 9
                                     I. Standard of Review
[4]   A post-conviction proceeding offers a petitioner an “opportunity to raise issues

      that were unknown or unavailable at the time of the original trial or the direct

      appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007), trans.

      denied. However, a post-conviction proceeding does not constitute “a super

      appeal,” and it “provide[s] only a narrow remedy for subsequent collateral

      challenges to convictions.” Id.


[5]   Post-conviction proceedings are civil in nature and the petitioner bears the

      burden of establishing his grounds for relief by a preponderance of the evidence.

      Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830

      (2003). On appeal from the denial of a petition for post-conviction relief, the

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

      Willoughby v. State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied.

      Therefore,


              [i]n order to prevail, the petitioner must show that the evidence is
              without conflict and leads unerringly and unmistakably to a
              conclusion opposite that reached by the post-conviction court. It
              is only where the evidence is without conflict and leads to but
              one conclusion, and the post-conviction court has reached the
              opposite conclusion, that the decision will be disturbed as being
              contrary to law.


[6]   Id. (internal citation and quotation marks omitted). We will not reweigh

      evidence or assess the credibility of witnesses. Maymon, 870 N.E.2d at 527.



      Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018   Page 4 of 9
                    II. Ineffective Assistance of Trial Counsel
[7]   Adamson first argues his trial counsel was ineffective for failing to move to

      disqualify the entire Monroe County Prosecutor’s Office from prosecuting him.

      Specifically, Adamson alleges prior legal representation by two current

      prosecutors in the Monroe County Prosecutor’s Office should have disqualified

      the office from prosecuting him.


[8]   To succeed on a claim of ineffective assistance of trial counsel, Adamson must

      prove his counsel’s performance was deficient and that he was prejudiced by the

      deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Trial

      counsel’s performance is deficient if it falls below an objective standard of

      reasonableness based on prevailing professional norms. Black v. State, 54

      N.E.3d 414, 424 (Ind. Ct. App. 2016), trans. denied. A deficient performance is

      prejudicial if there is a reasonable probability that, but for trial 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.” Id.


[9]   At the time of Adamson’s guilty plea, Indiana’s special prosecutor statute

      permitted a trial court to appoint a special prosecutor when it is evident “by

      clear and convincing evidence that the appointment is necessary to avoid an

      actual conflict of interest . . . .” Kubsch v. State, 866 N.E.2d 726, 731 (Ind. 2007)

      (citing Ind. Code § 33-39-1-6(b)(2) (repealed 2014)), cert. denied, 533 U.S. 1067

      (2008). In determining whether a prosecutor should be disqualified, the trial


      Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018   Page 5 of 9
       court must determine whether the controversy in the pending case is

       substantially related to an issue in which the prosecutor, as a private attorney,

       previously represented the defendant. Id. The trial court must also determine

       whether the prosecutor received confidential information in the prior

       representation and whether that information may have subsequently assisted

       the prosecution. Id. If an elected prosecutor is disqualified from a case, the

       elected prosecutor’s entire staff must also be recused. Larkin v. State, 43 N.E.3d

       1281, 1286 (Ind. Ct. App. 2015). However, the disqualification of a deputy

       prosecutor does not require the recusal of the entire staff. Id.


[10]   On December 7, 1999, the State charged Adamson with rape, a Class A felony;

       two counts of criminal deviate conduct, both Class A felonies; and criminal

       confinement, a Class B felony. The State also alleged Adamson was an

       habitual offender. On December 13, 1999, Robert Miller, now the current

       Chief Deputy Prosecuting Attorney of the Monroe County Prosecutor’s Office,

       filed an appearance on Adamson’s behalf. On January 31, 2000, Miller filed a

       motion to withdraw his appearance. Christopher Gaal, now the current

       Monroe County Prosecuting Attorney, appeared in court on Miller’s behalf and

       advised the trial court Miller would be withdrawing his appearance in the case.

       The trial court accepted Miller’s withdrawal and appointed a public defender to

       represent Adamson.


[11]   Fully distilled, Adamson’s argument is that due to Chief Deputy Miller’s brief

       representation of him and Prosecutor Gaal’s appearance in court on Miller’s

       behalf in late 1999 and early 2000, his trial counsel should have moved to

       Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018   Page 6 of 9
       disqualify the Monroe County Prosecutor’s Office in 2008. However, the

       record is absent of any evidence demonstrating an actual conflict of interest.

       Other than conclusory statements that Chief Deputy Miller learned of

       confidential information, Adamson does not offer any specifics or evidence

       about what Miller may have learned or how that influenced

       Adamson’s decision to plead guilty. Moreover, the record does not

       demonstrate Chief Deputy Miller played any role whatsoever in Adamson’s

       charges and guilty plea in 2008. As for Prosecutor Gaal, the evidence only

       demonstrates he appeared in court on Miller’s behalf to advise the trial court

       that Miller would be withdrawing his appearance in the case. And as with

       Chief Deputy Miller, Adamson offers zero evidence of an actual conflict of

       interest between Prosecutor Gaal and himself.


[12]   Adamson has failed to demonstrate an actual conflict of interest between

       himself and Chief Deputy Miller or Prosecutor Gaal; therefore, his counsel was

       not deficient in failing to move to disqualify the Monroe County Prosecutor’s

       Office.


                                           III. Factual Basis
[13]   Adamson also alleges the trial court failed to establish a factual basis for his

       plea of guilty to the habitual offender enhancement. The habitual offender

       enhancement statute provides,


               (a) Except as otherwise provided in this section, the state may
               seek to have a person sentenced as a habitual offender for any
               felony by alleging, on a page separate from the rest of the

       Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018   Page 7 of 9
               charging instrument, that the person has accumulated two (2)
               prior unrelated felony convictions.

               ***

               (c) A person has accumulated two (2) prior unrelated felony
               convictions for purposes of this section only if:

                        (1) the second prior unrelated felony conviction was
                        committed after sentencing for the first prior unrelated
                        felony conviction; and

                        (2) the offense for which the state seeks to have the person
                        sentenced as a habitual offender was committed after
                        sentencing for the second prior unrelated felony
                        conviction.



       Ind. Code § 35-50-2-8 (2005). Adamson alleges the trial court failed to establish

       a factual basis for his habitual offender adjudication. He bases this argument

       on the guilty plea hearing transcript which omits any sentencing dates for his

       prior convictions. Although we agree the sentencing dates are omitted from

       Adamson’s factual basis, we disagree that this entitles him to relief on his

       petition for post-conviction relief.


[14]   In Weatherford v. State, 619 N.E.2d 915, 917-18 (Ind. 1993), our supreme court

       held a post-conviction petitioner who challenges the propriety of his

       adjudication as an habitual offender may not prevail simply by putting the State

       to its proof as though the case were being tried or appealed in the first instance.

       Id. Rather, the defendant must demonstrate he is not an habitual offender under

       the laws of the State of Indiana. Id. at 918.



       Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018   Page 8 of 9
[15]   Thus, it is Adamson’s burden to prove he is not an habitual offender. Here, the

       record reveals Adamson admitted to the prior felonies which served as the basis

       for the habitual offender determination. Additionally, Adamson has not set

       forth any evidence demonstrating that there was anything untrue about the

       determination that he is an habitual offender. Thus, Adamson has failed to

       meet his burden of proving he is not an habitual offender.



                                               Conclusion
[16]   The post-conviction court did not err in denying Adamson’s petition for post-

       conviction relief.


[17]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018   Page 9 of 9
