 Pursuant to Ind.Appellate Rule 65(D),                           FILED
 this Memorandum Decision shall not be                         Mar 29 2012, 9:30 am
 regarded as precedent or cited before any
 court except for the purpose of                                      CLERK
 establishing the defense of res judicata,                          of the supreme court,
                                                                    court of appeals and
                                                                           tax court
 collateral estoppel, or the law of the case.


APPELLANT PRO SE:                                    ATTORNEYS FOR APPELLEE:

EURANUS JOHNSON                                      GREGORY F. ZOELLER
Michigan City, Indiana                               Attorney General of Indiana

                                                     JODI KATHRYN STEIN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

EURANUS JOHNSON,                                     )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )      No. 49A04-1103-PC-195
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Lisa F. Borges, Judge
                        The Honorable Stanley E. Kroh, Commissioner
                              Cause No. 49G04-0301-PC-6394


                                           March 29, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Euranus Johnson, pro se, appeals the denial of his petition for post-conviction relief.

Rather than challenging the denial on the merits, Johnson claims only that he was deprived of

adequate assistance of post-conviction counsel.

       We affirm.

       Following a jury trial, Johnson was convicted of class A felony rape, class A felony

criminal deviate conduct, class B felony criminal deviate conduct, class B felony carjacking,

class C felony robbery, and class D felony criminal confinement. The trial court imposed an

aggregate sentence of 151 years in prison.

       On direct appeal, Johnson challenged one of his convictions for criminal deviate

conduct on sufficiency grounds and challenged the maximum and consecutive sentences

imposed by the trial court. We affirmed the conviction for criminal deviate conduct, as well

as the sentence imposed for each of his convictions. Johnson v. State, 837 N.E.2d 209 (Ind.

Ct. App. 2005), trans. denied (2006).

       Thereafter, Johnson filed a pro-se petition for post-conviction relief (PCR petition) in

November 2008, alleging claims of ineffective assistance of trial and appellate counsel, as

well as claims of fundamental error. Johnson eventually retained private counsel. Loren

Comstock entered his appearance in August 2009, and Susan Rayl entered her appearance in

March 2010. After receiving information from Johnson regarding potential issues during

jury selection, counsel obtained a transcript of voir dire, which had not been previously

prepared.

       The post-conviction hearing commenced on July 6, 2010. Counsel called Johnson’s

lead trial attorney as a witness and submitted a number of exhibits. Further, during the

                                              2
relatively lengthy examination of trial counsel, attorney Comstock sought to amend the PCR

petition to provide an additional ground for the claim of ineffective assistance of trial counsel

pertaining to jury selection. The trial court granted the request, and counsel filed the written

amendment the following week. Due to the amendment and unavailability of two witnesses,

the hearing was continued until August 3, 2010.

        On the second day of the hearing, attorneys Rayl and Comstock called three witnesses

on Johnson’s behalf. These were Johnson’s appellate attorney, his other trial attorney, and

Johnson himself. Additional exhibits were also introduced, for a total of nine exhibits over

the two-day hearing. The post-conviction court also took judicial notice of its file. At the

conclusion of the hearing, the court took the matter under advisement and set the deadline for

the filing of proposed findings of fact and conclusions of law by the parties.

        On December 20, 2010, counsel filed thirteen pages of proposed findings and

conclusions in support of Johnson’s PCR petition, addressing the ineffectiveness of both trial

and appellate counsel. Although the proposed findings and conclusions did not address each

of the many claims raised in Johnson’s pro-se PCR petition, counsel addressed a handful of

claims that they apparently felt were the most likely to prevail. On February 18, 2011, the

post-conviction court issued detailed findings of fact and conclusions of law denying relief.1




1
  Despite denying relief, the post-conviction court did find one minor sentencing error and revised Johnson’s
sentence for class D felony criminal confinement accordingly, reducing it from three to two years and issuing
an amended abstract of judgment. This was based upon the limits set forth in Ind. Code Ann. § 35-50-1-2
(West, Westlaw through 2011 1st Regular Sess.) when imposing consecutive sentences for crimes arising out
of an episode of criminal conduct.

                                                     3
Johnson now appeals, claiming that “he was deprived of adequate assistance of post-

conviction counsel”. Appellant’s Brief at 1.

       It is well established that there is no constitutional right to counsel in post-conviction

proceedings under either the federal or the state constitution. See Hill v. State, 960 N.E.2d

141 (Ind. 2012). Instead of the rigorous Strickland2 standard, we judge post-conviction

counsel by a lesser standard based on due-course-of-law principles. Id. “When evaluating

post-conviction counsel, courts inquire whether ‘counsel in fact appeared and represented the

petitioner in a procedurally fair setting which resulted in a judgment of the court.’” Id. at 145

(quoting Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989)). Our Supreme Court has

consistently held that a claim of defective performance poses no cognizable grounds for post-

conviction relief. Graves v. State, 823 N.E.2d 1193 (Ind. 2005). In other words, we will not

review the adequacy of legal assistance provided by post-conviction counsel. See id. Rather,

a petitioner may obtain relief only in the extraordinary circumstances where his post-

conviction counsel effectively abandoned the case and prevented the client from being heard.

See id. See also Waters v. State, 574 N.E.2d 911, 911-12 (Ind. 1991) (“post-conviction

relief counsel was such that Waters did not receive a fair hearing on his petition, because,

although Waters’ attorney entered an appearance for him, no actual legal representation

occurred”); Taylor v. State, 882 N.E.2d 777, 784 (Ind. Ct. App. 2008) (“counsel called no

witnesses, presented no affidavits, and did not submit the trial record” rendering “it

impossible for the post-conviction court to conduct the necessary Strickland analysis”).

       In the instant case, Johnson does not and cannot argue that his post-conviction



                                               4
attorneys abandoned his case and prevented him from being heard.3 As set out above,

attorneys Rayl and Comstock appeared at the bifurcated two-day hearing, called four

witnesses, tendered nine exhibits, obtained a transcript of voir dire, amended the PCR

petition, and filed detailed proposed findings and conclusions in support of relief. Rayl and

Comstock certainly did not abandon Johnson. See Graves v. State, 823 N.E.2d 1193. See

also Matheney v. State, 834 N.E.2d 658, 666 (Ind. 2005) (“[t]hat counsel chose the claims

counsel believed likely to prevail is not ‘abandonment’ and did not deprive [petitioner] of a

procedurally fair post-conviction proceeding”). Moreover, the post-conviction court was

provided with evidence to allow the court to review the effectiveness of trial and appellate

counsel, as is reflected in the forty-two-page findings of fact and conclusions of law denying

post-conviction relief.

        Judgment affirmed.

RILEY, J., and MATHIAS, J., concur.




2
   Strickland v. Washington, 466 U.S. 668 (1984).
3
  The basis of Johnson’s appellate argument is that post-conviction counsel failed to properly present each of
the numerous claims asserted in his PCR petition and failed to submit certain evidence at the hearing. In
support of his argument, Johnson relies heavily upon a supplemental appendix that he filed in this appeal on
November 22, 2011. Upon motion by the State, our motions panel found, on December 27, 2011, that the
appendices, including the supplemental appendix, filed by Johnson were non-conforming, and the panel
ordered Johnson to file a conforming appendix within thirty-five days. Johnson filed a two-volume amended
appendix on January 27, 2012. Johnson did not include a supplemental appendix when refiling his appendix,
nor were the documents from the supplemental appendix filed on November 22 included in the newly-filed
appendix. Therefore, the supplemental appendix is not properly before us. Moreover, as Johnson concedes,
many of the documents contained in the supplemental appendix are not part of the record on appeal.
Accordingly, even if properly refiled, we could not consider this extra-record evidence.

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