MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Jan 29 2016, 9:23 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
John Mazurak                                             Gregory F. Zoeller
Westville, Indiana                                       Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Mazurak,                                            January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1502-PC-55
        v.                                               Appeal from the Allan Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff                                       Jr., Judge
                                                         Trial Court Cause No.
                                                         02D04-1404-PC-110



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016     Page 1 of 17
                               Case Summary and Issues
[1]   John Mazurak, pro se, appeals the post-conviction court’s denial of his petition

      for post-conviction relief, raising the following restated issues: (1) whether

      Mazurak received ineffective assistance of trial counsel, and (2) whether the

      post-conviction judge committed misconduct. Concluding Mazurak did not

      receive ineffective assistance of counsel and the post-conviction judge

      committed no misconduct, we affirm the denial of Mazurak’s petition for post-

      conviction relief.



                            Facts and Procedural History
[2]   On July 13, 2012, a Kroger loss prevention officer (“LPO”) noticed a man later

      identified as Mazurak adjusting his pants in an aisle of the grocery store. The

      only item in Mazurak’s cart was a bottle of water. The LPO followed Mazurak

      and observed Mazurak conceal a can of cherries in his pants. Mazurak

      proceeded to a self-checkout terminal, where he paid only for the bottle of

      water. The LPO stopped Mazurak as he was exiting the store. Mazurak

      removed over fourteen dollars of merchandise from his pants and fled on foot.

      The police apprehended Mazurak in the parking lot, and the State charged him

      with theft as a Class D felony.


[3]   On January 9, 2013, Mazurak and the State entered into a plea agreement,

      which left sentencing to the discretion of the trial court but capped the executed

      portion of Mazurak’s sentence at 183 days. The trial court conducted a guilty


      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016   Page 2 of 17
      plea hearing, at which time the trial court questioned Mazurak and advised

      Mazurak of the rights he was waiving by pleading guilty, including the right to

      appeal his sentence.1 When the trial court asked Mazurak if he had ever

      received treatment for “any mental illness” or if he was currently suffering from

      “any mental or emotional disability,” Mazurak said, “No.” Tr. of Guilty Plea

      Hr’g at 4. When the trial court asked Mazurak if he understood he was

      admitting to the crime charged by pleading guilty, Mazurak replied, “I put the

      two dollar jar of jam in my pocket which is theft.” Id. at 6. The trial court took

      the plea agreement under advisement, pending receipt of the presentence

      investigation report, and scheduled a sentencing hearing for February 4, 2013.


[4]   Mazurak failed to appear for sentencing, and the trial court issued a warrant for

      his arrest. Mazurak was arrested several months later. At the sentencing

      hearing held on June 25, 2013, Mazurak informed the trial court he suffers from

      “blackout spells” caused by permanent neurological damage:

               It was totally unintentional and the bottom line is I have a infract
               [sic] that causes that, my forgetfulness, which is a physical
               organic condition and it just—I do that . . . . I have medical
               records. I went to a lot of MRI’s and all that kind of thing to find




      1
        When a defendant pleads guilty under the terms of an agreement that provides for a sentencing cap or
      range, the defendant may subsequently appeal his or her sentence because the trial court exercised some
      amount of discretion in determining an appropriate sentence. Rivera v. State, 851 N.E.2d 299, 301 (Ind.
      2006). Here, Mazurak waived the right to appellate review pursuant to the terms of the plea agreement he
      entered with the State. Transcript of Guilty Plea Hearing at 5-6; see also Creech v. State, 887 N.E.2d 73, 75
      (Ind. 2008) (holding a defendant may waive the right to appeal his or her sentence as part of a written plea
      agreement).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016               Page 3 of 17
              out why it is that I can just blank out and I do. Quite kind of like
              a sleep walk but it doesn’t last very long . . . .


      Transcript of Sentencing Hearing at 9. Mazurak offered no evidence

      documenting his condition.


[5]   The trial court accepted the plea agreement, entered judgment of conviction for

      theft as a Class D felony, and sentenced Mazurak to three years in the

      Department of Correction, with 183 days executed and the remainder

      suspended to probation. Mazurak filed his first pro se petition for post-

      conviction relief in 2013, which the post-conviction court dismissed without

      prejudice. He filed a second pro se petition in 2014, alleging he received

      ineffective assistance of trial counsel and that the trial court, in various ways,

      abused its discretion. The post-conviction court ordered Mazurak submit his

      case by affidavit pursuant to Indiana Post-Conviction Rule 1(9)(b). Mazurak

      moved to vacate the court’s order and set an evidentiary hearing, but he also

      filed a “Reply to the State[’]s Answer to Post Conviction Relief,” which the

      post-conviction court concluded “appears to serve the purpose of submission of

      [Mazurak’s] case by affidavit.” Appellant’s Brief at 20 (Findings of Fact at ¶ 3).

      On January 30, 2015, the post-conviction court issued written findings of fact

      and conclusions of law in an order denying Mazurak’s petition without an

      evidentiary hearing. Mazurak now appeals the denial of his petition for post-

      conviction relief. Additional facts will be provided as necessary.



                                 Discussion and Decision
      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016   Page 4 of 17
                          I. Denial of Post-Conviction Relief
                                      A. Standard of Review
[6]   Post-conviction proceedings “provide a narrow remedy to raise issues that were

      not known at the time of the original trial or were unavailable on direct

      appeal.” Garrett v. State, 992 N.E.2d 710, 718 (Ind. 2013). The petitioner bears

      the burden of establishing grounds for relief by a preponderance of the

      evidence. Ind. Post-Conviction Rule 1(5). A petitioner who is denied post-

      conviction relief appeals from a negative judgment, which may be reversed only

      if “the evidence, as a whole, unmistakably and unerringly points to a

      conclusion contrary to the post-conviction court’s decision.” Wilkes v. State, 984

      N.E.2d 1236, 1240 (Ind. 2013) (citation omitted).


[7]   In reviewing a denial of post-conviction relief, we neither reweigh the evidence

      nor assess the credibility of witnesses. State v. Holmes, 728 N.E.2d 164, 169

      (Ind. 2000), cert. denied, 532 U.S. 1067 (2001). We consider only the evidence

      that supports the judgment and the reasonable inferences to be drawn from that

      evidence. Id. We accept the post-conviction court’s factual findings unless

      clearly erroneous, but we do not defer to its legal conclusions. Stevens v. State,

      770 N.E.2d 739, 746 (Ind. 2002) (citing Ind. Trial Rule 52(A)), cert. denied, 540

      U.S. 830 (2003).


                           B. Ineffective Assistance of Counsel
[8]   Mazurak contends the post-conviction court erred in denying his petition for

      post-conviction relief, which alleged he received ineffective assistance of trial

      Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016   Page 5 of 17
       counsel. The Sixth Amendment “right to counsel is the right to the effective

       assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984)

       (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a

       claim of ineffective assistance of counsel, a petitioner must demonstrate (1)

       counsel’s performance was deficient, and (2) the deficient performance

       prejudiced the defense. Id. at 687. Counsel’s performance was deficient if it fell

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. at 688.


[9]    As for the prejudice prong, there are two types of ineffective assistance claims

       available to a defendant who pleaded guilty: “(1) failure to advise the

       defendant on an issue that impairs or overlooks a defense and (2) an incorrect

       advisement of penal consequences.” Manzano v. State, 12 N.E.3d 321, 326 (Ind.

       Ct. App. 2014) (citation omitted), trans. denied, cert. denied, 135 S. Ct. 2376

       (2015). For claims relating to an overlooked defense, a petitioner must show a

       reasonable probability that he would have been acquitted had he gone to trial.

       Id. Where a petitioner claims counsel provided incorrect advice regarding penal

       consequences, the petitioner must show “the hypothetical reasonable defendant

       would have elected to go to trial if properly advised.” Segura v. State, 749

       N.E.2d 500, 507 (Ind. 2001).


[10]   Mazurak argues counsel rendered ineffective assistance by failing to: (1) raise

       an automatism defense, (2) challenge the constitutionality of Indiana’s theft

       statute, (3) object to the lack of a factual basis for Mazurak’s guilty plea, and (4)



       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016   Page 6 of 17
       advise Mazurak of the trial court’s discretion to impose a period of probation

       under the terms of the plea agreement.2 We will address each allegation in turn.


                                               1. Automatism Defense

[11]   Mazurak claims he suffers from “blackout spells,” which “disconnect the

       conscious mind thought processes from the rest of the brain’s functions . . . .”

       Appellant’s Br. at 12. Mazurak insists he was experiencing a “blackout spell”

       at the time of the offense and that counsel knew of his condition. Mazurak now

       contends counsel was ineffective by failing to raise an automatism defense, but

       in his petition for post-conviction relief, Mazurak argued counsel was

       ineffective by failing to raise an insanity defense. In either case, Mazurak

       claims counsel overlooked a defense.


[12]   Automatism is a state of unconscious behavior that “need not be the result of a

       disease or defect of the mind.” McClain v. State, 678 N.E.2d 104, 106, 108 (Ind.

       1997) (citation omitted). In Indiana, automatism is a recognized defense

       separate from the insanity defense. Id. at 108-09. Where unconscious behavior

       manifests in a person of sound mind, evidence of automatism may show a lack

       of criminal intent. Id. at 107-08 (citing Ind. Code § 35-41-2-1). To the extent a




       2
         Mazurak also argues counsel was ineffective by failing to move to dismiss the allegedly defective charging
       information. Because this issue was not raised in Mazurak’s petition for post-conviction relief, this claim is
       now unavailable. P-C.R. 1(8) (stating all grounds for relief must be raised in the original petition for post-
       conviction relief); Allen v. State, 749 N.E.2d 1158, 1171 (Ind. 2001) (“Issues not raised in the petition for post-
       conviction relief may not be raised for the first time on post-conviction appeal.”), cert. denied, 535 U.S. 1061
       (2002).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016                 Page 7 of 17
       person’s actions are attributable to a “mental disease or defect,”3 the insanity

       defense applies. Id. at 108 (citing Ind. Code § 35-41-3-6); see also Reed v. State,

       693 N.E.2d 988, 991-92 (Ind. Ct. App. 1998) (holding a “small stroke” causing

       disorientation and memory lapses was not a “mental disease or defect” within

       the meaning of the insanity statute and that evidence of the condition was

       relevant to issue of voluntariness).


[13]   In support of his petition for post-conviction relief, Mazurak submitted several

       unauthenticated medical records from 2011. The post-conviction court

       concluded the results of an MRI show “Mazurak’s brain was abnormal in some

       respects, but does not show that he had any mental disease or defect that

       rendered him ‘unable to appreciate the wrongfulness of his conduct at the time

       of the offense.’” Br. of Appellant at 21 (Findings of Fact at ¶ 5) (citing Ind.

       Code § 35-41-3-6). The post-conviction court further concluded there was no

       evidence suggesting Mazurak’s counsel knew or should have known an insanity

       defense would be successful, noting Mazurak first raised the issue at sentencing

       and had previously told the trial court, on the record, that he did not suffer from

       any mental illness or disability. Id. at 20-21 (Findings of Fact at ¶ 4-¶ 5) (citing

       Tr. of Guilty Plea Hr’g at 4).




       3
        “As used in [Indiana Code section 35-41-3-6], ‘mental disease or defect’ means a severely abnormal mental
       condition that grossly and demonstrably impairs a person’s perception, but the term does not include an
       abnormality manifested only by repeated unlawful or antisocial conduct.” Ind. Code § 35-41-3-6(b).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016          Page 8 of 17
[14]   Under these circumstances, we cannot say the evidence “unmistakably and

       unerringly points to a conclusion contrary to the post-conviction court’s

       decision.” Wilkes, 984 N.E.2d at 1240. To the extent Mazurak argues counsel

       should have raised an automatism defense, the claim is unavailable because he

       did not raise the issue in his original petition. P-C.R. 1(8) (stating all grounds

       for relief must be raised in the original petition for post-conviction relief); Allen,

       749 N.E.2d at 1171 (“Issues not raised in the petition for post-conviction relief

       may not be raised for the first time on post-conviction appeal.”).


[15]   To the extent Mazurak argues counsel should have raised an insanity defense,

       Mazurak presented no evidence suggesting counsel knew or should have known

       of his condition prior to the sentencing hearing, which was held over six

       months after the guilty plea hearing. See Allen v. State, 566 N.E.2d 1047, 1055

       (Ind. Ct. App. 1991) (concluding counsel’s failure to request a neurological

       examination did not constitute deficient performance because there no was

       indication counsel was aware of defendant’s neurological abnormality prior to

       trial). Moreover, Mazurak has failed show a reasonable probability an insanity

       defense would have been successful had he gone to trial. See Manzano, 12

       N.E.3d at 326. Indiana Code section 35-41-3-6(a) provides, “A person is not

       responsible for having engaged in prohibited conduct if, as a result of mental

       disease or defect, he was unable to appreciate the wrongfulness of the conduct

       at the time of the offense.” (emphasis added). The medical records submitted to

       the post-conviction court are from 2011, a year before Mazurak’s arrest in the

       present case. The records do not establish Mazurak was experiencing a


       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016   Page 9 of 17
       “blackout spell” at the time of the offense, and even assuming the offense did

       occur during a “blackout spell,” the records do not suggest Mazurak would

       have been unable to appreciate the wrongfulness of his conduct. At most, the

       records show Mazurak has a neurological abnormality of undetermined

       significance. The post-conviction court properly denied relief on this claim.


                            2. Constitutionality of Indiana’s Theft Statute

[16]   Mazurak contends the version of theft statute that was in effect at the time of

       his offense is unconstitutionally vague and that counsel was ineffective by

       overlooking this defense. At the time of Mazurak’s offense, the statute

       provided,

               (a) A person who knowingly or intentionally exerts unauthorized
               control over property of another person, with intent to deprive
               the other person of any part of its value or use, commits theft, a
               Class D felony. However, the offense is a Class C felony if:
                      (1) the fair market value of the property is at least one
                      hundred thousand dollars ($100,000) . . . .


       Ind. Code § 35-43-4-2(a) (2009). Effective July 1, 2014, the theft statute was

       amended as part of the General Assembly’s comprehensive revision of the

       criminal code. See Pub. L. No. 168-2014; Pub. L. No. 158-2013. The pertinent

       portion of the theft statute now reads,


               (a) A person who knowingly or intentionally exerts unauthorized
               control over property of another person, with intent to deprive
               the other person of any part of its value or use, commits theft, a
               Class A misdemeanor. However, the offense is:
                      (1) a Level 6 felony if:

       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016   Page 10 of 17
                                (A) the value of the property is at least seven
                                hundred fifty dollars ($750) and less than fifty
                                thousand dollars ($50,000);
                        ***
                        (2) a Level 5 felony if:
                               (A) the value of the property is at least fifty
                               thousand dollars ($50,000) . . . .


       Ind. Code § 35-43-4-2(a) (2014).


[17]   Mazurak argues the 2014 amendments render the old version of the statute

       unconstitutionally vague. From what we can discern, Mazurak contends the

       amendments make it impossible for an ordinary person to know whether theft is

       a misdemeanor or a felony. His argument focuses on the addition of a value

       threshold making theft of property worth less than $750 a Class A

       misdemeanor. He also claims the statute criminalizes the taking of “worthless

       abandoned property.” Appellant’s Br. at 15.


[18]   Any challenge to the validity of a statute must overcome a presumption of

       constitutionality. Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007). A criminal

       statute may be invalidated for vagueness if it (1) fails to provide notice enabling

       an ordinary person to understand the conduct it prohibits, or (2) authorizes or

       encourages arbitrary or discriminatory enforcement. Id. (citing City of Chicago v.

       Morales, 527 U.S. 41, 56 (1999)). However, a statute is void for vagueness only

       if it is vague as applied to the precise circumstances of the case at hand.

       Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008). “The




       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016   Page 11 of 17
       defendant is not at liberty to devise hypothetical situations which might

       demonstrate vagueness.” Id.


[19]   The post-conviction court concluded,

               [Mazurak] admitted at the guilty plea hearing that the property
               he took did have a value of two dollars ($2.00), [Tr. of Guilty
               Plea Hr’g at 6, 11], so . . . there was no question of “valueless”
               property under the precise circumstances of his case. He
               correctly asserts that, under present law, theft of property worth
               less than seven hundred fifty dollars ($750.00) would be a
               misdemeanor. However, he fails to note that savings clauses
               enacted in connection with the revision of Indiana’s criminal
               code (effective July 1, 2014) make it clear that the revision does
               not affect penalties incurred before the effective date of the new
               code, and that the doctrine of amelioration is not to be applied to
               such penalties. [Ind. Code § 1-1-5.5-21, -22]. The new definition
               of theft as a felony (including a value of at least $750.00) does not
               retroactively render the old definition (with no specified dollar
               value) unclear or unintelligible to persons of ordinary
               intelligence.


       Appellant’s Br. at 23 (Conclusions of Law at ¶ 4).


[20]   We agree with the post-conviction court, and we would further note both

       versions of the theft statute require, as an element of the offense, “unauthorized

       control over property of another person, with intent to deprive the other person of

       any part of its value or use.” Ind. Code § 35-43-4-2 (emphasis added). We

       therefore fail to comprehend how either version could be construed as

       criminalizing the taking of “worthless abandoned property.” Appellant’s Br. at

       15. And in this particular case, Mazurak admitted his actions constituted theft.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016   Page 12 of 17
       Prior to the trial court requesting a factual basis at the guilty plea hearing,

       Mazurak twice blurted out, “I put the two dollar jar of jam in my pocket which

       is theft.” Tr. of Guilty Plea Hr’g at 6 (emphasis added).4 Because a vagueness

       challenge to the theft statute would have been meritless, the post-conviction

       court properly denied relief on this claim of ineffective assistance. Gordon v.

       State, 645 N.E.2d 25, 28 (Ind. Ct. App. 1995) (“Counsel will not be deemed to

       be ineffective for failing to present meritless claims.”), trans. denied.


                               3. Factual Basis for Mazurak’s Guilty Plea

[21]   Mazurak contends he pleaded innocent, not guilty, and counsel was ineffective

       by failing to object to the lack of a factual basis for his guilty plea. Mazurak

       points to two statements at the sentencing hearing: (1) his statement that the

       theft was “totally unintentional” due to his “blackout spells,” and (2) his

       statement that he had “no choice” but to accept the standard terms of

       probation. Tr. of Sentencing Hr’g at 9, 12. During the guilty plea hearing six

       months before the sentencing hearing, Mazurak admitted guilt three separate




       4
         To the extent Mazurak contends no theft occurred because the merchandise was unopened and never left
       the store, that argument goes to the sufficiency of the evidence to support his conviction. “It is well settled
       that a person who pleads guilty cannot challenge the propriety of the resulting conviction on direct appeal[,]”
       Alvey v. State, 911 N.E.2d 1248, 1249 (Ind. 2009), and the claim is now unavailable because
             post-conviction relief generally may not be based upon any “ground . . . knowingly, voluntarily,
             and intelligently waived in the proceeding that resulted in the conviction.” A plea of guilty thus
             forecloses a post-conviction challenge to the facts adjudicated by the trial court’s acceptance of
             the guilty plea and resulting conviction.
       Norris v. State, 896 N.E.2d 1149, 1153 (Ind. 2008) (quoting P-C.R. 1(8)).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016            Page 13 of 17
       times and at no point claimed to be innocent. See Tr. of Guilty Plea Hr’g at 6,

       11.


[22]   In Indiana, “a trial court cannot accept a guilty plea from a defendant who

       pleads guilty and maintains his innocence at the same time.” Johnson v. State,

       734 N.E.2d 242, 245 (Ind. 2000) (citing Ross v. State, 456 N.E.2d 420, 423 (Ind.

       1983)). “A trial court may, however, accept a guilty plea from a defendant who

       pleads guilty in open court, but later protests his innocence.” Id. Even when a

       guilty plea has not been formally accepted, a trial court is not required to permit

       a defendant to withdraw his plea if he later claims innocence. Carter v. State,

       739 N.E.2d 126, 130-31 (Ind. 2000) (holding the trial court did not err by

       denying the defendant permission to withdraw his guilty plea at the sentencing

       hearing held a month after the guilty plea hearing).


[23]   The post-conviction court concluded, and we agree, “Mazurak is not entitled to

       post-conviction relief on the ground that he entered his guilty plea at one time

       and claimed to be innocent at another, without regard to which happened first.”

       Appellant’s Br. at 24 (Conclusions of Law at ¶ 7). Furthermore, we are

       unpersuaded Mazurak’s statements should be considered assertions of

       innocence. Mazurak claiming he “unintentionally” shoplifted is not the same

       as Mazurak denying he did so, and Mazurak’s statement regarding the terms of

       his probation had nothing to do with his guilt or innocence. The post-

       conviction court properly denied relief on this claim.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016   Page 14 of 17
                                           4. Mazurak’s Sentence

[24]   Finally, Mazurak contends counsel was ineffective by failing to advise him of

       the trial court’s discretion to impose a period of probation as part of the plea

       agreement. Mazurak pleaded guilty to a Class D felony and thus faced a

       maximum sentence of three years. Ind. Code § 35-50-2-7(a) (2012). The plea

       agreement left sentencing to the discretion of the trial court but capped the

       executed portion of Mazurak’s sentence at 183 days. At the guilty plea hearing,

       the trial court advised Mazurak of the maximum penalty, and the following

       exchange took place:

               Q:       I have in front of me a plea agreement in your case that
                        appears to have your signature on it. Did you sign it?

               A:       Yes Your Honor.

               Q:       Did you read it before you signed it?

               A:       Yes Your Honor.

               Q:       Did you discuss it with your attorney before you signed it?

               A:       Yes.

               Q:       Mr. Mazurak, it reads that at sentencing the defendant,
                        defendant’s attorney, and state may present facts and
                        argument but the Court has the final authority to impose a
                        sentence it deems proper. However, the executed portion
                        shall be no more than 183 days. The Court has the
                        authority to impose . . . fines, costs, standard, or special
                        conditions of probation it deems proper; pay $100.00
                        public defender fee; you waive your right to appeal the
                        reasonableness of the sentence and the State has no
       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016   Page 15 of 17
                        objection to you serving any executed sentence in Home
                        Detention or Work Release if eligible. Is that your
                        understanding of the plea agreement?

               A:       Yes Your Honor.


       Tr. of Guilty Plea Hr’g at 8-9.


[25]   The trial court sentenced Mazurak to three years in the Department of

       Correction, with 183 days executed and the remainder suspended to probation.

       When the trial court announced Mazurak’s sentence, Mazurak stated he was

       under the impression the sentence could not exceed 183 days total. Tr. of

       Sentencing Hr’g at 11. Now, Mazurak argues counsel misadvised him of the

       terms of the plea agreement.5 But even if this were so—and there is no evidence

       suggesting it is—the trial court advised Mazurak of the terms. Mazurak

       therefore cannot show “the hypothetical reasonable defendant would have

       elected to go to trial if properly advised.” Segura, 749 N.E.2d at 507 (emphasis

       added). Mazurak was properly advised, even if he was not advised by counsel.

       The post-conviction court properly denied relief on this claim.


                                      II. Judicial Misconduct
[26]   As best we can discern, Mazurak contends the post-conviction judge—who also

       presided over Mazurak’s case at the trial court level—committed misconduct by




       5
         To the extent Mazurak argues his sentence exceeded the terms of the plea agreement, we disagree. The
       terms of the plea agreement were clear, and the trial court did not depart from them.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016        Page 16 of 17
       ordering Mazurak to submit his case by affidavit and by exhibiting personal

       bias. Under Post-Conviction Rule 1(9)(b), “In the event petitioner elects to

       proceed pro se, the court at its discretion may order the cause submitted upon

       affidavit.” Mazurak proceeded pro se and provides no argument as to why an

       evidentiary hearing was required in his case. See Ind. Appellate Rule

       46(A)(8)(a) (requiring each contention in the appellant’s brief be supported by

       cogent reasoning and citations to the authorities and parts of the record relied

       on). As to the alleged bias, Mazurak argues the judge openly exhibited

       personal bias against persons with mental disabilities. Mazurak cites no specific

       instances demonstrating bias, and we find no support for this allegation in the

       record. In short, these arguments are waived due to Mazurak’s failure to

       comply with the appellate rules, but we would also note, waiver

       notwithstanding, we find no evidence of judicial misconduct in the record.



                                               Conclusion
[27]   Mazurak received effective assistance of trial counsel, and the post-conviction

       judge did not commit misconduct. We therefore affirm the post-conviction

       court’s denial of post-conviction relief.


[28]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1502-PC-55 | January 29, 2016   Page 17 of 17
