MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                              Jun 11 2018, 5:46 am
this Memorandum Decision shall not be
                                                                         CLERK
regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Matthew L. Major                                         Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew L. Major,                                        June 11, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         53A04-1711-PC-2650
        v.                                               Appeal from the
                                                         Monroe Circuit Court
State of Indiana,                                        The Honorable
Appellee-Respondent.                                     Marc R. Kellams, Judge
                                                         Trial Court Cause No.
                                                         53C02-1512-PC-2449



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A04-1711-PC-2650 | June 11, 2018         Page 1 of 9
[1]   Matthew L. Major (“Major”) appeals the denial of his petition for post-

      conviction relief contending that the post-conviction court improperly denied

      Major’ petition for post-conviction relief under Post-Conviction Rule 1, section

      4(f) for failure to include factual allegations in support of his claim for

      ineffective assistance of counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts supporting Major’s convictions as set forth by this court on his direct

      appeal are as follows:


      Prior to their marriage Major and his then-girlfriend Sarah Moore
      (“Sarah”) had a daughter, S.M., born in 2004. The couple married in
      2005, when Sarah was only sixteen. The couple had another child, a
      son, H.M., born in 2011. Sarah filed for divorce in 2012, and the
      divorce was finalized in early 2013. Major and his ex-wife shared
      custody of the children. Following the divorce, Major lived with his
      girlfriend, Rebecca Gillespie (“Rebecca”), in Bloomington, along with
      Rebecca’s two young children, aged nine and three.


      After the divorce, Sarah noticed that S.M.’s behavior began to change;
      her grades at school declined, and the nine-year-old child began to wet
      the bed several times per week. S.M. apparently got along well with her
      father and his new girlfriend but disliked it when her father drank too
      much, which occurred more often following the divorce.


      In the summer of 2013, Sarah noticed blood in S.M.’s underwear and
      assumed the girl had started menstruating. Later that summer, she
      noticed that S.M. was starting to grow pubic hair. She therefore told
      S.M. that she was going through puberty and that having a period

      Court of Appeals of Indiana | Memorandum Decision 53A04-1711-PC-2650 | June 11, 2018   Page 2 of 9
meant that it was possible for her to become pregnant. S.M. then
turned pale and informed her mother that Major had been touching her
inappropriately.


S.M. stated that Major had taken her on a walk at a park and told her to
take off her shorts. Major then told her to bend over, and he placed his
penis in S.M.’s “bottom.” Tr. at 82. Major moved his body back and
forth while saying, “f* *k.” Id. When they returned to the car, he told
S.M. to get in the driver’s seat, which he then reclined so that she could
lie down. Major then placed his penis in S.M.’s vagina and began to
move back and forth. H.M., who had been sleeping in a car seat, woke
up and began to cry. Major told the young child to shut up. S.M.
began to cry and asked Major to stop. Instead, he struck her and told
her to be quiet or he would “do it harder.” Id. at 100-01. When he was
finished, Major told S.M. that what he had done was a “daddy-
daughter secret” that she should not tell to anyone. Id. at 83.


On another occasion, Major told S.M. to take off her shorts and
underwear when she was in bed. He then waited until she was asleep,
crawled on top of her and placed his penis in S.M.’s “bottom part,”
which she identified as not her vagina. Id. at 84. When Major had
finished, S.M. went to the bathroom and noticed that she was bleeding.
On yet another occasion, Major placed two of his fingers in S.M.’s
vagina. When S.M. told Major that this hurt, he told her to be quiet.
S.M. also testified that when she was in the car with her father, Major
would take photographs of her genitals or “play[ ] around” with her
genital area. During another incident, Major told S.M. to go to
Rebecca’s room when Rebecca was not at home. Major exposed his
penis, and told his daughter to manipulate him. He also made S.M.
perform oral sex on him until he ejaculated.


During another incident in the car, Major unzipped his pants, removed
his penis and told S.M. to fondle him. He also pushed her head down
and forced her to perform oral sex on him. He threatened to “knock
[S.M.]’s teeth down [her] throat” if she used her teeth on his penis. Id.

Court of Appeals of Indiana | Memorandum Decision 53A04-1711-PC-2650 | June 11, 2018   Page 3 of 9
at 95. In all, S.M. testified that Major had put his penis in her vagina
on “three or four” occasions, and identified four locations where such
behavior had occurred. Id. at 117.


After telling her mother about Major’s actions, Sarah took S.M. to the
hospital, where she was examined by Dr. Roberta Hibbard (“Dr.
Hibbard”). Dr. Hibbard noticed redness in S.M.’s genital area and a
small adhesion in her labia. The police also took a mattress from
Rebecca’s apartment. Five cuttings from the mattress tested positive for
seminal fluid; two of these cuttings had sperm cells with DNA that
matched Major; one cutting had DNA matching Rebecca; and two
others had a mixture of DNA from at least three people, from which
Major, Rebecca, and S.M. could not be excluded.


On August 9, 2013, the State charged Major with six counts of Class A
felony child molesting, Class C felony vicarious sexual gratification,
Class D felony intimidation, and Class A misdemeanor possession of
marijuana. A jury trial was held from February 18 to February 21,
2014. At the trial, the State called Rebecca as a witness and had her
identify three photos of female genitalia as her own. Rebecca claimed
that Major had taken the photos with his phone when they were in the
car. Major objected to the admission of these photos on grounds of
relevance, but the trial court overruled his objection when the State
indicated that the relevance of the photos would become clear based
upon further testimony. The State then called Dr. Hibbard to testify
regarding the photos. Dr. Hibbard, however, was unable to state with
any certainty whether the photos were of Rebecca’s genitals or S.M.’s.
After a sidebar discussion, the trial court then struck the three photos
from evidence and instructed the jury to disregard them. Major moved
for a mistrial, which the trial court denied.


At the conclusion of trial, the jury found Major guilty of six counts of
Class A felony child molesting but acquitted on the other counts. The
trial court found as aggravating that Major had a prior criminal history
and that Major, as S.M.’s father, had abused a position of trust over a
period of time. The trial court then sentenced Major to concurrent
Court of Appeals of Indiana | Memorandum Decision 53A04-1711-PC-2650 | June 11, 2018   Page 4 of 9
      terms of thirty years each on each count. The trial court ordered
      Counts I-III to be served concurrently and Counts V and VI to be served
      concurrently. However, the trial court ordered Counts I-III, Count IV,
      and Counts V-VI to be served consecutively, for an aggregate term of
      ninety years.


      Major v. State, No. 53A01-1404-CR-158, slip op. at 2-5 (Ind. Ct. App. Dec. 22,

      2014), trans. denied.


[4]   Major appealed, arguing that the trial court erred in denying his motion for

      mistrial and that the trial court abused its discretion by ordering some of his

      sentences to run consecutively. Id. at 5-10. After this court affirmed the trial

      court’s judgment, Major sought post-conviction relief with a claim of ineffective

      assistance of counsel. Appellant’s App. Vol. 2 at 5. Major did not include any

      specific facts in his petition, but indicated that facts would be developed in an

      amended petition. Id. at 6. The post-conviction court appointed the State

      Public Defender’s Office to represent Major; however, counsel withdrew from

      Major’s case in September 2017. Id. at 2-3. In October 2017, Major filed a

      notice with the post-conviction court that he was proceeding pro se. Id. at 3.

      On October 13, 2017, the post-conviction court issued an order denying post-

      conviction relief, finding that Major had failed to set forth any factual

      allegations in his petition for post-conviction relief. Id. at 4, 24-25. Major now

      appeals.




      Court of Appeals of Indiana | Memorandum Decision 53A04-1711-PC-2650 | June 11, 2018   Page 5 of 9
                                     Discussion and Decision
[5]   Post-conviction proceedings do not afford the petitioner an opportunity for a

      super appeal, but rather, provide the opportunity to raise issues that were

      unknown or unavailable at the time of the original trial or the direct appeal.

      Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164

      (2002); Wieland v. State, 848 N.E. 2d 679, 681 (Ind. Ct. App. 2006), trans. denied,

      cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

      appeal and provide only a narrow remedy for subsequent collateral challenges

      to conviction. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-

      conviction relief bears the burden of proving the grounds by a preponderance of

      the evidence. Ind. Post-Conviction Rule 1(5).


[6]   When a petitioner appeals a denial of post-conviction relief, he appeals a

      negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

      trans. denied. The petitioner must establish that the evidence as a whole

      unmistakably and unerringly leads to a conclusion contrary to that of the post-

      conviction court. Id. We will disturb a post-conviction court’s decision as

      being contrary to law only where the evidence is without conflict and leads to

      but one conclusion, and the post-conviction court has reached the opposite

      conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

      denied.


[7]   Here, the post-conviction court denied Major’s petition pursuant to Post-

      Conviction Rule 1, section 4(f). Appellant’s App. Vol. 2 at 25. This provision


      Court of Appeals of Indiana | Memorandum Decision 53A04-1711-PC-2650 | June 11, 2018   Page 6 of 9
      states, in relevant part, “If the pleadings conclusively show that petitioner is

      entitled to no relief, the court may deny the petition without further

      proceedings.” P-C.R. 1(4)(f).


[8]   Major contends that the post-conviction court erred in denying his petition for

      post-conviction relief because he alleged ineffective assistance of counsel. In

      arguing this Major relies on Tooley v. State, 156 Ind. App. 636, 297 N.E.2d 856,

      857-58 (1973), which held that where there was a general allegation of

      ineffective counsel by applicant for post-conviction relief and an unverified

      general denial thereof by state, with no supporting material filed by either party,

      a genuine issue of material fact existed as to effectiveness or adequacy of

      counsel requiring an evidentiary hearing. Major asserts that his petition for

      post-conviction relief included a general allegation of ineffective counsel, and

      the State responded with a general denial of the allegation; therefore, since

      neither party provided supporting material in their respective petition and

      answer, an evidentiary hearing must be held to find facts and resolve the

      conflict between the parties.


[9]   However, since Tooley, our Supreme Court stated in Sherwood v. State, that

      “without specific factual allegations in support of the claim of inadequacy of

      representation no evidentiary hearing is required.” Sherwood v. State, 453

      N.E.2d 187, 189 (Ind. 1983) (holding that an evidentiary hearing was required

      because the appellant stated a specific factual allegation to support his claim

      that counsel’s representation was inadequate); see also Kelly v. State, 952 N.E.2d

      297, 299 (Ind. Ct. App. 2011) (holding that evidentiary hearing was required

      Court of Appeals of Indiana | Memorandum Decision 53A04-1711-PC-2650 | June 11, 2018   Page 7 of 9
       because petitioner provided specific allegations in his post-conviction relief

       petition regarding the trial counsel’s inadequate performance during his

       competency and sentencing hearing). Therefore, because Major did not provide

       specific factual allegations to support his ineffective assistance of counsel claim

       in his petition for post-conviction relief, nor did he amend the petition to

       include facts regarding his counsel’s inadequate performance, the post-

       conviction court did not err in denying Major’s petition.


[10]   Additionally, Major also argues that the post-conviction court erred in denying

       his motion entitled “Motion for Transcript Partial Trial Proceedings.”

       Appellant’s Br. at 8-10. “Petitioners who are indigent and proceeding in forma

       pauperis shall be entitled to production of guilty plea and sentencing transcripts

       at public expense, prior to a hearing, if the petition is not dismissed.” P-C.R.

       1(9)(b). In that motion, Major requested that the post-conviction court provide

       a transcript of voir dire from his trial. Appellant’s App. Vol. 2 at 20. The CCS

       entry indicates that Major’s “Notice of Present Inability to Investigate and

       Amend the Pro Se Petition for Post-Conviction Relief” and “Motion for

       Transcript Partial Trial Proceedings” were received by the post-conviction court

       on October 13, 2017. Id. at 4. The CCS entry further indicates that the post-

       conviction court issued its order denying post-conviction relief on the same

       date. Because there were no pending proceedings at the time Major’s motion

       for a partial transcript was received, the post-conviction court did not err in

       denying the motion.


       Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 53A04-1711-PC-2650 | June 11, 2018   Page 8 of 9
Baker, J., and Bradford, J., concur.




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