                                                            FILED
                                                       Feb 24 2017, 11:37 am

                                                            CLERK
                                                        Indiana Supreme Court
                                                           Court of Appeals
                                                             and Tax Court




      APPELLANT PRO SE                                           ATTORNEYS FOR APPELLEE
      Jerry L. McClure                                           Curtis T. Hill, Jr.
      Pendleton, Indiana                                         Attorney General

                                                                 James B. Martin
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jerry L. McClure,                                          February 24, 2017
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 79A02-1501-PC-36
              v.                                                 Appeal from the Tippecanoe
                                                                 Superior Court
      State of Indiana,                                          The Honorable Thomas H. Busch,
      Appellee-Respondent.                                       Judge
                                                                 Trial Court Cause No.
                                                                 79D02-1408-PC-9



      Najam, Judge.


                                       Statement of the Case
[1]   On remand from the Indiana Supreme Court, Jerry L. McClure argues that the

      post-conviction court erred when it summarily dismissed his petition for post-

      conviction relief. We hold that McClure has not met his burden on appeal to

      Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017              Page 1 of 6
      demonstrate error. Accordingly, on the merits of McClure’s argument, we

      affirm.


                                 Facts and Procedural History
[2]   The facts underlying McClure’s convictions were stated by this court during his

      direct appeal:

              On January 17, 2006, McClure went to a store in Lafayette
              armed with a knife with the intent to rob someone. McClure
              selected Phyllis Washington as his victim because she was older
              and he believed she would be easier to rob than a man or a
              younger woman. McClure confronted Washington, stabbed
              Washington in an attempt to get her purse, and took her purse.
              Washington suffered serious bodily injury as a result of the
              attack.


              The State charged McClure with attempted murder as a class A
              felony, robbery resulting in serious bodily injury as a class A
              felony, aggravated battery as a class B felony, battery resulting in
              serious bodily injury as a class C felony, theft as a class D felony,
              and being an habitual offender. The trial court scheduled a jury
              trial for August 1, 2006. On July 26, 2006, McClure pleaded
              guilty to robbery resulting in serious bodily injury as a class A
              felony and being an habitual offender, and the State dismissed
              the remaining charges and agreed not to seek probation
              revocation in any pending case.


      McClure v. State, No. 79A02-0609-CR-818, 2007 WL 2390175, at *1 (Ind. Ct.

      App. Aug. 23, 2007) (footnotes omitted), trans. denied. We affirmed McClure’s

      sentence on appeal.




      Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017      Page 2 of 6
[3]   Thereafter, McClure filed a petition for post-conviction relief.1 According to

      McClure, the trial court committed fundamental error when it accepted his

      guilty plea on the habitual offender enhancement without a factual basis for that

      plea, especially as that factual basis may have related to the identity and

      sequence of predicate offenses; and his trial counsel rendered ineffective

      assistance when he “allowed McClure to plea[d] guilty to the Habitual Offender

      Count.” Appellant’s Br. at 5, 7-8.


[4]   McClure proceeded pro se. Accordingly, pursuant to the discretion expressly

      afforded to it under Section 9(b) of Indiana Post-Conviction Rule 1, the post-

      conviction court ordered the cause submitted upon affidavit. In particular, the

      court ordered McClure “to submit [an] affidavit in support of [his] petition for

      post-conviction relief within sixty days,” with the State to file a responsive

      affidavit within thirty days of McClure’s submission. Appellant’s App. at 4.


[5]   McClure never submitted an affidavit in support of his petition for post-

      conviction relief. Neither does the record on appeal demonstrate that he

      objected to the post-conviction court’s decision to proceed upon affidavit. In

      light of McClure’s lack of a supporting affidavit, the State moved for summary

      disposition of McClure’s petition. The post-conviction court granted the State’s

      motion and denied McClure’s petition for relief.




      1
       McClure has not included a copy of his petition in his appendix on appeal, but the State does not challenge
      McClure’s assertions regarding the issues he raised in his petition.

      Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017                       Page 3 of 6
[6]   McClure initiated an appeal from the post-conviction court’s judgment. After

      numerous notices of defects with his appellate filings and his attempts to cure

      those defects, upon McClure’s motion this court granted him leave to file a

      belated brief. McClure received further notices of defects, but, on November

      23, 2015, we granted McClure’s motion to file his brief on appeal. However,

      McClure’s defective appendix remained not filed, and, on February 16, 2016,

      we dismissed McClure’s appeal in a memorandum decision due to the absence

      of a record on appeal for us to review.


[7]   McClure filed a petition for transfer of jurisdiction to the Indiana Supreme

      Court. The Indiana Supreme Court ordered McClure’s appendix to also be

      filed. Subsequently, the court remanded McClure’s appeal to this court for our

      review of the merits of his appeal.


                                     Discussion and Decision
[8]   McClure appeals the post-conviction court’s summary disposition of his

      petition for post-conviction relief. As our supreme court has explained:

              An appellate court reviews the grant of a motion for summary
              disposition in post-conviction proceedings on appeal in the same
              way as a motion for summary judgment. Thus summary
              disposition, like summary judgment, is a matter for appellate de
              novo determination when the determinative issue is a matter of
              law, not fact.


      Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008) (citations omitted). In

      summary judgment proceedings, the moving party (here, the State) is the party


      Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017   Page 4 of 6
       that bears the burden to demonstrate that there is no genuine issue of material

       fact and that it is entitled to judgment as a matter of law. Hughley v. State, 15

       N.E.3d 1000, 1003-04 (Ind. 2014). However, a trial court’s grant of summary

       judgment is clothed with a presumption of validity, and the party who lost in

       the trial court (here, McClure) has the burden of demonstrating that the grant of

       summary judgment was erroneous. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

       1167, 1173 (Ind. Ct. App. 2012), trans. denied.


[9]    On appeal, McClure asserts that the post-conviction court erred when it denied

       his petition for post-conviction relief for several reasons. Specifically, McClure

       asserts (1) that the trial court committed fundamental error when it accepted his

       guilty plea on the habitual offender enhancement without a factual basis for that

       plea, especially as that factual basis may have related to the identity and

       sequence of predicate offenses;2 (2) that his trial counsel rendered ineffective

       assistance when he “allowed McClure to plea[d] guilty to the Habitual Offender

       Count,” Appellant’s Br. at 5, 7-8, and (3) that the post-conviction court erred

       when it summarily disposed of his petition without a hearing.


[10]   McClure has not carried his burden on appeal with respect to any of his claims

       for relief. The chronological case summary from the post-conviction court

       demonstrates that McClure did not submit an affidavit, or any other evidence,

       to the post-conviction court pursuant to its order to proceed upon affidavits.




       2
           McClure states this one issue as two in his brief on appeal.


       Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017    Page 5 of 6
       Having presented no evidence whatsoever to the post-conviction court pursuant

       to its order and in support of his allegations, we cannot say that the post-

       conviction court erred when it granted the State’s subsequent motion for

       summary disposition of McClure’s petition for post-conviction relief. Thus, we

       affirm the post-conviction court’s judgment on the merits of this appeal.


[11]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017   Page 6 of 6
