MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                       FILED
regarded as precedent or cited before any                         Mar 10 2020, 7:19 am

court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Benny R. Knight, Jr.                                     Curtis T. Hill, Jr.
Miami Correctional Facility                              Attorney General
Bunker Hill, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Benny R. Knight, Jr.                                     March 10, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-3006
        v.                                               Appeal from the Shelby Superior
                                                         Court
State of Indiana,                                        The Honorable R. Kent Apsley,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         73D01-1804-PC-4



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020             Page 1 of 13
                                                 Case Summary
[1]   Benny R. Knight, Jr., pled guilty by plea agreement to level 2 felony dealing in

      methamphetamine and received an advisory sentence per the plea agreement.

      He filed a pro se petition for post-conviction relief (“PCR”), raising several

      claims of ineffective assistance of counsel. The post-conviction court denied his

      petition, and he now appeals. Finding that he has failed to demonstrate clear

      error, we affirm.


                                   Facts and Procedural History 1
[2]   The underlying facts are as follows. On March 7, 2017, Indiana State Police

      Trooper William Gannon and a canine unit conducted a traffic stop on a

      speeding vehicle heading eastbound from Indianapolis to Shelby County. The

      driver, Cecil Fox, was personally known to police and did not have a valid

      license. Knight was riding in the passenger’s seat. The police dog sniffed the

      perimeter of Fox’s vehicle and alerted the troopers to the presence of narcotics.

      The troopers searched the vehicle and discovered a baggie between the

      passenger’s seat and the passenger’s door. The baggie contained a crystal rock-

      like substance that field-tested positive for methamphetamine.




      1
        Knight’s brief does not conform to the Indiana Appellate Rules in several respects. For example, his
      statement of facts simply reiterates the procedural history of his case and does not include a recitation of the
      underlying facts as required by Indiana Appellate Rule 46(A)(6). He also has failed to include a summary of
      the argument as required by Indiana Appellate Rule 46(A)(7). Additionally, his amended appendix does not
      include a table of contents in a separate volume, as required by Indiana Appellate Rule 50(C).

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020                      Page 2 of 13
[3]   The troopers transported Knight and Fox to the criminal justice center, where

      both were interviewed by detectives. Fox told police that he had agreed to drive

      Knight to Indianapolis to purchase methamphetamine in return for “two 8

      balls” from Knight. Petitioner’s Ex. II. After he was Mirandized, Knight

      admitted during his videotaped interview that he had engaged Fox to drive him

      to Indianapolis, where he purchased fifteen grams of methamphetamine for

      $850 and planned to sell it to a few people in Shelbyville with whom he dealt on

      a normal basis. Id.


[4]   The State charged Knight with level 2 felony dealing in methamphetamine. At

      that time, Knight had another cause pending against him in the same county

      (“Cause 28”). Cause 28 involved a level 4 felony dealing charge stemming

      from a February 2017 controlled buy of two grams of methamphetamine from

      Knight and his wife. Knight was appointed different public defenders in the

      two causes. In the current cause, he initially pled not guilty. However, he

      subsequently changed his plea and pled guilty by plea agreement to the level 2

      felony dealing charge in exchange for the dismissal of the level 4 felony charge

      in Cause 28. The plea agreement set Knight’s sentence at the advisory

      seventeen and one-half years, with the manner and place of serving to be left up

      to the trial court. On January 19, 2018, Knight signed the plea agreement and

      waiver of rights form. He was eligible for a habitual offender count, but the

      State did not file one. The trial court accepted Knight’s guilty plea and ordered

      him to serve fifteen years of his sentence in the Indiana Department of

      Correction (“DOC”) and the remaining two and one-half years on probation.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020   Page 3 of 13
[5]   In April 2018, Knight’s public defender filed a PCR petition. Knight

      subsequently elected to proceed pro se. In his amended PCR petition, he raised

      several allegations of ineffective assistance of counsel (“Counsel”), including

      Counsel’s alleged failure to object to improper evidence during sentencing,

      investigate and produce favorable evidence, depose the State’s witnesses,

      provide a meaningful defense, negotiate a favorable plea, move to dismiss the

      charging information for lack of specificity, and move for a speedy trial. He

      also claimed that Counsel had a conflict of interest. At his October 2018 PCR

      hearing, Knight questioned witnesses, introduced exhibits, and made argument.

      He did not testify under oath and did not produce the records from his guilty

      plea or sentencing hearings. On November 14, 2018, the post-conviction court

      issued its order with findings of fact and conclusions of law denying Knight’s

      PCR petition. Knight now appeals. Additional facts will be provided as

      necessary.


                                     Discussion and Decision
[6]   Knight contends that the post-conviction court erred in denying his PCR

      petition. Post-conviction relief does not offer the petitioner a super appeal;

      rather, subsequent collateral challenges must be based on grounds enumerated

      in the post-conviction rules. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct. App.

      2013), trans. denied (2014). These rules limit the scope of relief to issues

      unknown or unavailable to the petitioner on direct appeal. Id. The petitioner in

      a PCR proceeding “bears the burden of establishing grounds for relief by a

      preponderance of the evidence.” Ind. Post-Conviction Rule 1(5); Humphrey v.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020   Page 4 of 13
      State, 73 N.E.3d 677, 681 (Ind. 2017). When issuing its decision to grant or

      deny relief, the post-conviction court must make findings of fact and

      conclusions of law on all issues presented. Ind. Post-Conviction Rule 1(6);

      Humphrey, 73 N.E.3d at 682.


[7]   We review a post-conviction court’s denial of a PCR petition for clear error.

      Massey v. State, 955 N.E.2d 247, 253 (Ind. Ct. App. 2011). To prevail on

      appeal, the petitioner must show that the evidence as a whole leads unerringly

      and unmistakably to a conclusion opposite the one reached by the

      postconviction court. Ellis v. State, 67 N.E.3d 643, 646 (Ind. 2017). In

      conducting our review, we neither reweigh evidence nor judge witness

      credibility; rather, we consider only the evidence and reasonable inferences

      most favorable to the judgment. McKnight, 1 N.E.3d at 199.


[8]   At the outset, we note that Knight has elected to proceed pro se, both below

      and on appeal. It is well settled that pro se litigants are held to the same legal

      standards as licensed attorneys. Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct.

      App. 2016), trans. denied (2017). This means that they must follow our

      established rules of procedure and accept the consequences when they fail to do

      so. Id. It is not the court’s role to become an “advocate for a party, or address

      arguments that are inappropriate or too poorly developed or expressed to be

      understood.” Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020   Page 5 of 13
[9]    Knight maintains that he was denied his constitutional right to effective

       assistance of counsel. 2 To prevail on an ineffective assistance claim, he must

       satisfy two components: he must demonstrate both deficient performance and

       prejudice resulting from it. Strickland v. Washington, 466 U.S. 668, 687 (1984).

       Deficient performance is “representation [that] fell below an objective standard

       of reasonableness, [where] counsel made errors so serious that counsel was not

       functioning as ‘counsel’ guaranteed to the defendant by the Sixth Amendment.”

       Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013). We assess counsel’s

       performance based on facts that are known at the time and not through

       hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App. 2006), trans.

       denied.


[10]   “[C]ounsel’s performance is presumed effective, and a defendant must offer

       strong and convincing evidence to overcome this presumption.” Ritchie v. State,

       875 N.E.2d 706, 714 (Ind. 2007). “Tactical or strategic decisions will not

       support a claim of ineffective assistance,” and we therefore afford those

       decisions great deference. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)

       (citation omitted). We evaluate counsel’s performance as a whole. Flanders v.

       State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012). “Strickland

       does not guarantee perfect representation, only a reasonably competent




       2
         Knight also lists among his issues for review a claim of judicial bias during the PCR hearing and an alleged
       conflict of interest by Counsel. However, he fails to develop any cogent argument on these claims of error as
       required by Indiana Appellate Rule 46(A)(8) and therefore has waived review of them. Wingate v. State, 900
       N.E.2d 468, 475 (Ind. Ct. App. 2009). Moreover, his brief is largely incoherent, but we will address those
       claims from which we can glean the essence of his argument.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020                    Page 6 of 13
       attorney.” Hinesley v. State, 999 N.E.2d 975, 983 (Ind. Ct. App. 2013), trans.

       denied (2014). Prejudice occurs when a reasonable probability exists that, but

       for counsel’s errors, the result of the proceeding would have been different.

       Passwater, 989 N.E.2d at 770. “A reasonable probability is a probability

       sufficient to undermine confidence in the outcome.” Mitchell v. State, 946

       N.E.2d 640, 643 (Ind. Ct. App. 2011), trans. denied.


[11]   “Although the performance prong and the prejudice prong are separate

       inquiries, failure to satisfy either prong will cause the claim to fail.” Baer v.

       State, 942 N.E.2d 80, 91 (Ind. 2011). Where the judge who presided over the

       defendant’s trial or, in this case, guilty plea proceedings, is also the judge who

       presided over his post-conviction proceedings, the judge is “uniquely situated”

       to assess counsel’s performance and any ensuing prejudice, and his findings and

       judgment should be entitled to “greater than usual deference.” Hinesley, 999

       N.E.2d at 982.


[12]   In the context of a guilty plea, the prejudice prong of the Strickland test focuses

       on whether counsel’s deficient performance affected the outcome of the plea

       process. Hill v. Lockhart, 474 U.S. 52, 59 (1985). To satisfy the prejudice

       requirement, the petitioner therefore must show that there is a reasonable

       probability that, but for counsel’s errors, he would not have pled guilty. Id.

       “[T]o prove they would have rejected the guilty plea and insisted on trial,

       defendants must show some special circumstances that would have supported

       that decision. Defendants cannot simply say they would have gone to trial, they



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020   Page 7 of 13
       must establish rational reasons supporting why they would have made that

       decision.” Bobadilla v. State, 117 N.E.3d 1272, 1284 (Ind. 2019).


[13]   Knight first asserts that Counsel was ineffective for failing to move to dismiss

       the charging information for lack of specificity. “A charging information must

       be ‘sufficiently specific to apprise the defendant of the crime for which he is

       charged and to enable him to prepare a defense.’” Jones v. State, 938 N.E.2d

       1248, 1252 (Ind .Ct. App. 2010) (quoting Bonner v. State, 789 N.E.2d 491, 493

       (Ind. Ct. App. 2003)); see also Ind. Code § 35-34-1-2(a) (listing required contents

       of charging information). Knight bore the burden of establishing that a motion

       to dismiss would have been granted. Garrett v. State, 992 N.E.2d 710, 723 (Ind.

       2013). Knight did not include a copy of the charging information in his

       amended appendix, and it appears that he did not produce a copy of it for

       admission as an exhibit during the PCR hearing. 3 Therefore, the post-

       conviction court was limited to evaluating the potential success of any motion

       to dismiss the charging information based on testimony presented during the

       PCR hearing. Counsel testified that he reviewed the charging information and

       found that it included the statutory requirements, such as the name and date of

       the charged offense, the applicable statutes, and the elements of the offense.

       Counsel concluded that the offense was sufficiently pled and determined that he

       would not have filed a motion that he believed would be



       3
         We ultimately located a copy of the charging information that Knight attached to a June 17, 2019 motion
       to remand under Indiana Appellate Rule 37. The motions panel of this Court denied his motion on June 28,
       2019.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020                Page 8 of 13
       unsuccessful/frivolous. Tr. Vol. 2 at 26-27; see also Appealed Order at 8 (post-

       conviction court’s finding that Counsel “determined he would not file what he

       believed to be a frivolous motion.”). In contrast, Knight never testified under

       oath concerning what elements or requirements he alleged were missing from

       the charging information or how he was misled as a result. Thus, the post-

       conviction court did not clearly err in finding that Knight failed to establish

       ineffective assistance on this basis.


[14]   Knight also maintains that Counsel was ineffective for failing to file a motion

       for a fast and speedy trial. With respect to this claim, we first note that in

       conjunction with his plea agreement, Knight signed an advisement of rights and

       waiver that states, “You have the right to a public and speedy trial by jury ….

       The Defendant further understands that the entry of a guilty plea waives those

       rights and constitutes an admission of the truth of all facts alleged in the

       information to which a plea of guilty has been entered[.]” State’s Ex. 1. By his

       signature, Knight acknowledged that he had read and understood his plea

       agreement and advisement of rights and waiver. Id. Counsel testified that he

       went over the documents with Knight and that Knight acknowledged that he

       read and understood the rights that he was waiving by pleading guilty. Counsel

       also affirmed that he had not forced Knight to accept the plea agreement. Tr.

       Vol. 2 at 28. Knight introduced copies of handwritten, unauthenticated notes

       and letters that he purportedly sent to Counsel requesting a speedy trial. Many

       of the notes were not admitted due to a lack of foundation, and some of them

       appear to have been related to Cause 28 rather than the current underlying


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020   Page 9 of 13
       cause. Knight never testified under oath concerning the notes. The post-

       conviction court found that the notes do not purport to be original letters sent to

       counsel but rather are handwritten “duplicate originals” about which the court

       could “draw no conclusions” due to the “silent record before the Court.”

       Appealed Order at 5.


[15]   Counsel testified that he had no recollection of Knight ever having requested

       that he file a motion for fast and speedy trial. Tr. Vol. 2 at 13-14. He explained

       that there would have been no need for a speedy trial motion when the case was

       moving toward a negotiated plea agreement and that Knight’s case would not

       ordinarily lend itself to a speedy trial due to the seriousness of the charge and

       the fact that he was facing another felony drug dealing charge and a potential

       habitual offender count. Id. at 28. These are matters of strategy and tactics, to

       which we accord deference. McCary, 761 N.E.2d at 392. Thus, we find no

       clear error concerning Knight’s claim of ineffective assistance related to his

       desire for a speedy trial.


[16]   Likewise, to the extent that they are cogent, most of Knight’s remaining

       allegations of deficient performance are matters of Counsel’s strategy. These

       include Counsel’s alleged failure to investigate, depose witnesses, communicate

       with Knight, negotiate a favorable plea, and provide a meaningful defense.

       During his testimony at the PCR hearing, Counsel testified that he had read all

       the documents and had received all the discovery related to the current

       underlying charge against Knight. He stressed that he did not order depositions

       or subpoenas because he did not believe that they would be beneficial or

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020   Page 10 of 13
       necessary when there was not a trial anticipated. With plea agreement

       negotiations on the horizon, Counsel focused on pursuing the “best sentence for

       him as I could.” Tr. Vol. 2 at 21. He articulated the following reasons for

       recommending a plea agreement for Knight: the seriousness of the level 2

       felony dealing charge; the fact that Knight was habitual-offender eligible; his

       knowledge that it is “very typical” for this particular prosecutor’s office to file a

       habitual offender count if the case goes to trial; the prospect of arranging the

       dismissal of Knight’s level 4 felony charge in Cause 28 with a sentence exposure

       of twelve years; and most importantly, the admissible video evidence of

       Knight’s confession to the facts underlying the level 2 felony dealing charge in

       this cause. Id. at 27; see also id. at 25 (“The video was very difficult to

       overcome.”). Under the circumstances, Counsel’s alleged failures were simply

       part of his defense strategy and do not amount to defective performance. As

       such, we find no clear error here.


[17]   As for the (un)favorability of the plea agreement itself, Knight received a benefit

       in the form of the dismissal of his level 4 felony charge in Cause 28 and its

       additional twelve years of sentence exposure. Moreover, by entering the plea

       agreement, he effectively avoided the filing of a habitual offender count, which

       carried an additional twenty years of sentence exposure. He also had the peace

       of mind of knowing that his sentence on the current underlying level 2 felony

       would be limited to the advisory term, with the possibility of serving some of

       that time outside the DOC (ultimately, two and one-half years to be served on

       probation). These were not unfavorable terms. Counsel affirmed that he had


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020   Page 11 of 13
       not forced Knight to accept the plea agreement and that Knight had affirmed at

       the guilty plea hearing that he was satisfied with Counsel’s representation. Tr.

       Vol. 2 at 28.


[18]   To the extent that Knight alleges deficient performance related to Counsel’s

       failure to object to evidence during sentencing, we note that this allegation

       requires resort to the sentencing transcript. Knight did not attempt to introduce

       the sentencing transcript in the PCR proceedings below. Nor did he ask the

       post-conviction court to take judicial notice of it. See Appealed Order at 3

       (“Neither party introduced any transcript or complete record of the proceedings

       in the underlying criminal case.”). Knight’s failure to produce the sentencing

       transcript below therefore amounted to a failure to present evidence to support

       this claim. Mitchell, 946 N.E.2d at 645. The post-conviction court is not

       required “to go searching for records in support of either party’s position or to

       become an advocate or investigator for either party.” 4 Graham v. State, 947

       N.E.2d 962, 965 (Ind. Ct. App. 2011); see also Appealed Order at 3 (“The Court

       is constrained by the very limited record before it.”). Thus, we find no clear

       error in the post-conviction court’s conclusion that Knight did not meet his




       4
         Knight now requests that this Court take judicial notice of the sentencing and guilty plea hearing
       transcripts. Although Indiana Evidence Rule 201(b)(5) allows this Court to take judicial notice of “records of
       a court of this state,” we cannot consider evidence not made a part of the record below. Mitchell v. State, 946
       N.E.2d 640, 644-45 (Ind. Ct. App. 2011), trans. denied. As such, we deny his motion for judicial notice in a
       separate order.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020                   Page 12 of 13
       burden of establishing ineffective assistance concerning Counsel’s alleged

       failure to object during sentencing.


[19]   In sum, Knight has failed to present evidence sufficient to overcome the

       presumption that Counsel provided effective assistance. Sadly, the deficiencies

       in this case are attributable to Knight’s failures in acting as his own attorney.

       Below, he failed to produce the transcripts of the guilty plea and sentencing

       hearings or request that the post-conviction court take judicial notice of them.

       This has impeded our review. In conducting his own representation below,

       Knight failed to testify under oath. Instead, he simply made argument while

       questioning other witnesses, despite the post-conviction court’s repeated

       admonitions that his pro se statements could not be considered evidence. See,

       e.g., Tr. Vol. 2 at 16-17; see also Donnegan v. State, 809 N.E.2d 966, 973 n.9 (Ind.

       Ct. App. 2004) (“argument of counsel is not evidence”), trans. denied. Knight’s

       failure to follow the rules of appellate procedure resulted in the waiver of some

       of his arguments, and his failure to follow the rules of evidence resulted in the

       exclusion of several of his exhibits for lack of a proper foundation. While we

       are mindful of his lack of legal training, we are also mindful of our duty to hold

       him to the same standard as a licensed attorney. Lowrance, 64 N.E.3d at 938.

       Finding no clear error in the post-conviction court’s judgment, we affirm its

       denial of Knight’s PCR petition.


[20]   Affirmed.


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

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-3006 | March 10, 2020   Page 13 of 13
