MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
                                                                        Sep 20 2017, 6:27 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Carlos Ramirez                                           Curtis T. Hill, Jr.
Pendleton, IN                                            Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, IN



                                           IN THE
    COURT OF APPEALS OF INDIANA

Carlos Ramirez,                                          September 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1703-PC-495
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff                                       Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-1512-PC-54



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1703-PC-495 | September 20, 2017         Page 1 of 6
                                          Case Summary
[1]   Carlos Ramirez sought post-conviction relief alleging that his trial counsel was

      ineffective because he did not inform him of a plea offer from the State before

      trial. The post-conviction court denied relief, finding that trial counsel had in

      fact informed Ramirez of the plea offer and that Ramirez had turned it down.

      Because we do not reweigh the evidence or judge the credibility of the

      witnesses, we affirm the post-conviction court’s denial of relief.



                            Facts and Procedural History
[2]   In the summer of 2008, a confidential informant purchased cocaine from

      Ramirez in Goshen on three separate occasions. The State charged Ramirez

      with three counts of dealing in cocaine, two as Class B felonies and one as a

      Class A felony. Brent Zook, an attorney since the late 1970s and a public

      defender in Elkhart County, represented Ramirez at trial. The jury found

      Ramirez guilty as charged. The trial court sentenced him to fifteen years for

      each of the Class B felonies and forty years for the Class A felony, to be served

      concurrently. On direct appeal, we found that Ramirez’s sentences were

      inappropriate and remanded for the trial court to impose a thirty-year sentence

      for the Class A felony and a ten-year sentence for each of the Class B felonies,

      to be served concurrently. Ramirez v. State, No. 20A03-0907-CR-337 (Ind. Ct.

      App. Feb. 25, 2010).




      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-PC-495 | September 20, 2017   Page 2 of 6
[3]   In 2015, Ramirez filed a pro se petition for post-conviction relief, which was

      later amended. Specifically, Ramirez alleged that Attorney Zook failed to

      inform him of a plea offer from the State before trial. A hearing was held in

      2016. Attorney Zook had passed away by this time. Ramirez testified at the

      hearing that there was a twenty-five-year plea offer from the State that Attorney

      Zook never told him about and that had he known about the offer he would

      have accepted it. See P-C Tr. Vol. II p. 7. In response, the State presented

      testimony from Clifford Williams, the Chief Public Defender for Elkhart

      County since 1985. Williams testified that he was familiar with the customs

      and practices of the public defenders in his office, that most criminal cases

      involve an attempt to negotiate a plea, that public defenders have a legal and

      ethical obligation to discuss every plea offer with their clients, and that

      ultimately it is the defendant’s choice whether to accept a plea offer. Williams

      testified that Attorney Zook was a “thorough” attorney who handled serious

      felony cases and “many, many, many” jury trials. Id. at 23-24. In addition,

      Williams brought Attorney Zook’s file from Ramirez’s case with him to the

      hearing. Williams confirmed that it was Attorney Zook’s file based on his

      familiarity with Attorney Zook’s handwriting. Inside the file, there was a sheet

      called “Attorney Notes.” See Ex. 1. Williams described the purpose of the

      “Attorney Notes” sheet as follows: “[B]asically you put in a date of . . . possibly

      a jail visit or the date maybe when you’ve interviewed someone or the date

      when you’ve looked at a video, that sort of thing. It’s kind of [a] log of what




      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-PC-495 | September 20, 2017   Page 3 of 6
      you’ve done . . . .” P-C Tr. Vol. II p. 25. On May 28, 2009,1 Attorney Zook

      handwrote that Ramirez “turn[ed] down the deal of 25 cap on A [felony].” Ex.

      1.


[4]   The post-conviction court denied relief, reasoning:


              Considering that there is physical evidence indicating that
              [Attorney Zook] made a note in the case file that [Ramirez]
              turned down a deal of 25 cap, [Ramirez’s] self serving statement
              that counsel never brought a plea offer to him for consideration
              carries very little weight and [Ramirez’s] assertion is not credible.
              Therefore, the Court cannot draw the conclusion based on the
              evidence before it that [Attorney Zook] was ineffective in his
              representation of [Ramirez] with respect to any plea negotiations
              in this case.


      Appellant’s App. Vol II p. 40.


[5]   Ramirez, pro se, now appeals.



                                 Discussion and Decision
[6]   Defendants who have exhausted the direct-appeal process may challenge the

      correctness of their convictions and sentences by filing a petition for post-

      conviction relief. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), reh’g denied.

      Post-conviction proceedings are not an opportunity for a “super-appeal,” and




      1
       The CCS reveals that a hearing was held on May 28, 2009. Ramirez’s jury trial then began on June 1,
      2009.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-PC-495 | September 20, 2017       Page 4 of 6
      not all issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001),

      reh’g denied. Rather, subsequent collateral challenges to convictions must be

      based on grounds enumerated in the post-conviction rules. Ind. Post-

      Conviction Rule 1(1); Timberlake, 753 N.E.2d at 597. In post-conviction

      proceedings, complaints that something went awry at trial are cognizable only

      when they show deprivation of the right to effective counsel or issues

      demonstrably unavailable at the time of trial or direct appeal. Sanders v. State,

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


[7]   Post-conviction proceedings are civil proceedings, requiring the petitioner to

      prove his claims by a preponderance of the evidence. Stevens, 770 N.E.2d at

      745. We review the post-conviction court’s legal conclusions de novo but

      accept its factual findings unless they are clearly erroneous. Id. at 746. We will

      not reweigh the evidence or judge the credibility of the witnesses; we examine

      only the probative evidence and reasonable inferences that support the decision

      of the post-conviction court. Stephenson v. State, 864 N.E.2d 1022, 1031 (Ind.

      2007), reh’g denied. The petitioner must establish that the evidence as a whole

      leads unerringly and unmistakably to a decision opposite that reached by the

      post-conviction court. Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002).


[8]   A defendant claiming that his attorney was ineffective must show by a

      preponderance of the evidence that (1) counsel’s performance fell below the

      objective standard of reasonableness based on “prevailing” professional norms

      and (2) the defendant was prejudiced by this substandard performance, i.e.,

      there is a “reasonable probability” that, but for counsel’s errors or omissions,

      Court of Appeals of Indiana | Memorandum Decision 20A03-1703-PC-495 | September 20, 2017   Page 5 of 6
       the outcome of the case would have been different. Stephenson, 864 N.E.2d at

       1031.


[9]    Ramirez notes the general principle that criminal-defense attorneys have a duty

       to inform their clients of plea agreements proffered by the prosecution and that

       failure to do so constitutes ineffective assistance of counsel. See, e.g., Dew v.

       State, 843 N.E.2d 556, 568 (Ind. Ct. App. 2006), trans. denied. He then claims

       that Attorney Zook was ineffective because he “did not proffer a plea agreement

       to the Appellant for 25 years.” Appellant’s Br. p. 5. Ramirez fails to

       acknowledge, however, that the post-conviction court found, based on the

       evidence presented at the hearing, that (1) Attorney Zook informed him of the

       twenty-five-year plea deal, (2) Ramirez turned down that deal, and (3)

       Ramirez’s “self serving” claim to the contrary was “not credible.” Because we

       do not reweigh the evidence or judge the credibility of the witnesses, we affirm

       the post-conviction court’s denial of relief.


[10]   Affirmed.


       Mathias, J., and Crone, J., concur.




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