 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be                          Apr 25 2013, 9:34 am
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.


APPELLANT PRO SE:                                     ATTORNEYS FOR APPELLEE:

CHARLES E. JUSTISE, SR.                               GREGORY F. ZOELLER
Michigan City, Indiana                                Attorney General of Indiana

                                                      ANDREW A. KOBE
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

CHARLES E. JUSTISE SR.,                               )
                                                      )
       Appellant-Defendant,                           )
                                                      )
                vs.                                   )      No. 49A02-1209-PC-736
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                      APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Robert Altice, Judge
                            Cause No. 49G02-0509-PC-151284


                                            April 25, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       Charles E. Justise, Sr. appeals from the denial of his petition for post-conviction relief

and argues that the post-conviction court erred in denying him relief.

       We affirm.

       On September 6, 2005, Justise was charged with one count of class B felony

aggravated battery and three counts of class C felony battery. Following a jury trial at which

Justise proceeded pro se, Justise was convicted of two counts of class C felony battery and

acquitted of the remaining charges. On July 12, 2006, the trial court sentenced Justise to

consecutive five-year terms on both counts, resulting in a ten-year executed sentence.

       Appellate counsel filed a notice of appeal on Justise’s behalf on August 4, 2006.

Justise subsequently filed a motion to proceed pro se, which was granted, and appellate

counsel was ordered to withdraw her appearance. This court ultimately dismissed Justise’s

direct appeal due to his failure to timely file an appellant’s brief. On June 10, 2011, Justise,

still proceeding pro se, filed the current petition for post-conviction relief, in which he

alleged multiple freestanding claims of trial error. The post-conviction court granted

Justise’s motion to proceed by affidavit, and issued its order denying Justise’s petition for

post-conviction relief on July 3, 2012. The post-conviction court found, in pertinent part,

that “[u]nquestionably, each of Justise’s complaints is a free-standing issue that was available

for review in his direct appeal.” Appellant’s Appendix at 117. Justise filed a motion to

correct error, which the post-conviction court denied. Justise now appeals.

       Post-conviction proceedings are not “super appeals” through which convicted persons

can raise issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d


                                               2
389, 391 (Ind. 2002). “Rather, they create a narrow remedy for subsequent collateral

challenges to convictions which must be based on grounds enumerated in the post-conviction

rules.” Wrinkles v. State, 749 N.E.2d 1179, 187 (Ind. 2001). A post-conviction petitioner

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

Henley v. State, 881 N.E.2d 639 (Ind. 2008). On appeal from the denial of post-conviction

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

To prevail on appeal from the denial of post-conviction relief, the petitioner must show that

the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that

reached by the post-conviction court. Id. at 643-44.

       Where, as here, the post-conviction court makes findings of fact and conclusions of

law in accordance with Indiana Post-Conviction Rule 1(6), we confine our review to

determining whether the court’s findings are sufficient to support its judgment. Graham v.

State, 941 N.E.2d 1091 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962. Although we

do not defer to the post-conviction court’s legal conclusions, we review the post-conviction

court’s factual findings under the “clearly erroneous” standard. Id. Accordingly, we will not

reweigh the evidence or judge the credibility of witnesses, and we will consider only the

probative evidence and reasonable inferences flowing therefrom that support the post-

conviction court’s decision. Id.

       “Post-conviction procedures do not provide a petitioner with an opportunity to present

freestanding claims that contend the original trial court committed error.” Wrinkles v. State,

749 N.E.2d at 1187 n.3. Rather, “‘[i]n post-conviction proceedings, complaints that


                                              3
something went awry at trial are generally cognizable only when they show deprivation of the

right to effective counsel or issues demonstrably unavailable at the time of trial or direct

appeal.’” Bunch v. State, 778 N.E.2d 1285, 1289-90 (Ind. 2002) (quoting Sanders v. State,

765 N.E.2d 591, 592 (Ind. 2002)).

       With the exception of his claims of sentencing error, Justise concedes that he has

raised only freestanding claims of error unavailable to him through a petition for post-

conviction relief. Although Justise does not dispute that his sentencing claims were known

and available on direct appeal, he argues that he may nevertheless present these claims in a

petition for post-conviction relief because they amount to fundamental error. It is well

settled, however, that freestanding claims of fundamental error are unavailable on post-

conviction review. Bunch v. State, 778 N.E.2d 1285; Sanders v. State, 765 N.E.2d 591;

Smith v. State, 792 N.E.2d 940, 943 (Ind. Ct. App. 2003).                Accordingly, Justise’s

freestanding fundamental error claim is foreclosed in the instant collateral proceedings. The

fact that Justise’s direct appeal was dismissed due to his failure to timely file a brief does

nothing to alter this conclusion. See Taylor v. State, 780 N.E.2d 430 (Ind. Ct. App. 2002)

(holding that freestanding claims of sentencing error were not available in post-conviction

proceedings despite the fact that petitioner did not file a direct appeal). We therefore

conclude that the trial court did not err in denying Justise’s petition for post-conviction relief.

       Judgment affirmed.

ROBB, C.J., and CRONE, J., concur.




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