MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 Jan 17 2018, 8:58 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Kevin Jemar Mamon                                        Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kevin Jemar Mamon,                                       January 17, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A01-1602-PC-435
        v.                                               Appeal from the Hancock Superior
                                                         Court
State of Indiana,                                        The Honorable R. Kent Apsley,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause No.
                                                         30D01-1501-PC-83



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018             Page 1 of 8
                                              Case Summary
[1]   Kevin Jemar Mamon (“Mamon”) appeals, pro se, the denial of his petition for

      post-conviction relief, which challenged several convictions that stemmed from

      events following a traffic stop. Mamon represented himself at his underlying

      trial, but was represented by counsel during most of the pre-trial phase. On

      appeal, Mamon focuses on a single issue, which we restate as whether Mamon

      received ineffective assistance of counsel because his pre-trial counsel did not

      file a motion to suppress evidence, and this allegedly precluded Mamon from

      later challenging the constitutionality of the traffic stop.1


[2]   We affirm.



                              Facts and Procedural History
[3]   On direct appeal, a panel of this Court provided the following recitation:


               On April 10, 2012, Indiana State Police Trooper Matthew
               Wilson was parked on Interstate Highway 70 in Hancock
               County, watching traffic in a construction zone. He saw a Jeep




      1
        In his reply brief, Mamon briefly asserts that counsel was ineffective for failing to challenge the propriety of
      venue in Hancock County, and that the post-conviction court erred in certain respects, including by failing to
      “examine the entirety of the lawyer’s work on the case.” Reply Br. At 6. However, an appellant waives any
      issue first raised in the reply brief. See Ind. Appellate Rule 46(C) (“No new issues shall be raised in the reply
      brief.”); Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977-78 (Ind. 2005) (“The law is well settled
      that grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in
      the reply brief, they are waived.”).



      Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018                 Page 2 of 8
        Cherokee following another vehicle too closely and pulled it
        over.


        Mamon was driving the Jeep. When Wilson asked for a driver’s
        license, Mamon provided an identification card. Mamon
        showed signs of intoxication, like red, glassy eyes. The Jeep’s
        interior smelled of alcohol.


        Trooper Wilson went back to his car to find out whether
        Mamon’s license was suspended and to retrieve his portable
        Breathalyzer. He confirmed that Mamon’s license was
        suspended, but before he could return to the Jeep, Mamon got
        out and walked away along the highway.


        Wilson activated his car’s public address system and ordered
        Mamon to return to his Jeep. Mamon ignored Wilson three
        times, so Wilson parked his squad car in front of him and again
        ordered him to return to the Jeep. Mamon walked back to the
        Jeep only after Wilson threatened to arrest him for resisting law
        enforcement.


        Wilson moved his car back to the Jeep and parked behind it.
        Mamon reentered the Jeep and drove away at a high rate of
        speed. Wilson followed, with his lights and siren activated.
        Mamon sped through the construction zone, traveling up to
        eighty miles an hour while changing lanes without signaling and
        “running people off the road.” Tr. p. 155. Wilson ended the
        chase after a mile and a half because it was too dangerous for the
        traffic conditions. Other officers later arrested Mamon.


        The State charged Mamon with class D felony resisting law
        enforcement, class A misdemeanor criminal recklessness, class B
        misdemeanor reckless driving, and being a habitual offender.



Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018   Page 3 of 8
      Mamon v. State, 6 N.E.3d 488, 489-90 (Ind. Ct. App. 2014).


[4]   The trial court appointed a public defender, who first appeared on behalf of

      Mamon on June 14, 2012. Subsequently, Mamon expressed his desire to

      represent himself, and the trial court held a hearing on the matter on November

      1, 2012. At the conclusion of the hearing, the trial court granted Mamon’s

      request to represent himself, and the court instructed the public defender to

      serve as standby counsel. The trial court specified that standby counsel could

      assist Mamon only with leave of the court and that Mamon could request the

      assistance of standby counsel at any time.


[5]   A jury trial was held on December 17, 2012, at which Mamon represented

      himself. Mamon was found guilty as charged, and he subsequently admitted to

      being a habitual offender. Thereafter, Mamon—with the assistance of appellate

      counsel—pursued a direct appeal, in which he acknowledged that he had not

      objected to the admission of evidence procured as a result of the traffic stop. Id.

      at 489-90. This Court reviewed for fundamental error, and ultimately affirmed

      Mamon’s convictions because Mamon had not made a “claim of evidence

      fabrication or willful malfeasance on the part of law enforcement.” Id.


[6]   On January 7, 2015, Mamon filed a pro se petition for post-conviction relief,

      which he later amended. Following a hearing on Mamon’s amended petition,

      the post-conviction court entered an order denying post-conviction relief.


[7]   Mamon now appeals.



      Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018   Page 4 of 8
                                 Discussion and Decision
[8]   The petitioner in a post-conviction proceeding bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5). “When appealing the denial of post-conviction relief, the petitioner

      stands in the position of one appealing from a negative judgment.” Ellis v. State,

      67 N.E.3d 643, 646 (Ind. 2017). To prevail, the petitioner must show “that the

      evidence leads unerringly and unmistakably to a conclusion opposite that

      reached by the post-conviction court.” Humphrey v. State, 73 N.E.3d 677, 681

      (Ind. 2017). Here, the post-conviction court made findings of fact and

      conclusions of law in accordance with Post-Conviction Rule 1(6). Although we

      do not defer to the post-conviction court’s legal conclusions, “[a] post-

      conviction court’s findings and judgment will be reversed only upon a showing

      of clear error”—that which leaves us with a definite and firm conviction that a

      mistake has been made. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000).


[9]   The Sixth Amendment to the United States Constitution guarantees two

      conflicting rights: the right to counsel and the right to self-representation. See

      Faretta v. California, 422 U.S. 806, 832-34 (1975). “The policy supporting the

      right of self-representation is personal autonomy,” Carter v. State, 512 N.E.2d

      158, 162 (Ind. 1987), a purpose that stands in contrast to that of the right to

      counsel, which “is to protect an accused from conviction resulting from his own

      ignorance of his legal and constitutional rights.” Id. A petitioner is entitled to

      post-conviction relief if he can demonstrate that he received ineffective

      assistance of counsel, that is, he must demonstrate that counsel’s deficient

      Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018   Page 5 of 8
       performance was prejudicial. See, e.g., Humphrey v. State, 73 N.E.3d at 682.

       However, “[a] defendant who proceeds pro se . . . must accept the burdens and

       hazards of self-representation. He may not assert a Sixth Amendment claim of

       ineffective assistance of counsel because he, in effect, would be alleging himself

       ineffective.” Carter, 512 N.E.2d at 162 (citations omitted).


[10]   Mamon alleges that he received ineffective assistance of counsel because his

       pre-trial counsel failed to file a motion to suppress the evidentiary fruits of the

       traffic stop. In so arguing, Mamon points out that the omnibus date had passed

       before he began representing himself, and he asserts that passage of the

       omnibus date rendered “the issues . . . closed for jury trial.” Appellant’s Br. at

       8. Mamon further contends that the trial court was “not timely noticed on the

       matter,” and that the filing of a pre-trial motion to suppress “would have

       obviated any need for a trial.” Id.


[11]   Yet, Mamon has not demonstrated that the performance of his pre-trial counsel

       prevented him from challenging the stop, either before the trial or after the trial

       commenced. Indeed, Mamon began representing himself more than a month

       before trial, and he did not file or seek to file a pre-trial motion to suppress;

       Mamon merely speculates that the trial court would have refused to consider

       his pre-trial motion after the omnibus date. Moreover, at trial, Mamon failed to

       object to the admission of the evidence he now complains of, missing a plain

       opportunity to challenge the constitutionality of the stop. Thus, even if we

       assume for the sake of argument that the stop was unconstitutional, Mamon—

       through his own inaction—is responsible for any error for which he now claims

       Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018   Page 6 of 8
       entitlement to relief. See Faretta, 422 U.S. at 834 n.46 (“[A] defendant who

       elects to represent himself cannot thereafter complain that the quality of his

       own defense amounted to a denial of ‘effective assistance of counsel.’”); Carter,

       512 N.E.2d at 162; cf. Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (“[A]

       party may not take advantage of an error that she commits, invites, or which is

       the natural consequence of her own neglect or misconduct.”).


[12]   Furthermore, although Mamon asserts that he would not have elected to

       represent himself “[b]ut for pre-trial counsel’s pre-trial errors,” Reply Br. at 4,

       Mamon stated that he wished to represent himself because he knew the “type of

       defense that [he] want[ed] presented.” Exh. DD. Thus, Mamon sought

       autonomy, and the exercise of the Sixth Amendment right to self-representation

       does not amount to cognizable prejudice. See Faretta, 422 U.S. at 834 (stating

       that “although [a defendant] may conduct his own defense ultimately to his

       own detriment, his choice must be honored out of that respect for the individual

       which is the lifeblood of the law” (internal quotation marks omitted)).

       Ultimately, a party representing himself “is held to the same standards as a

       trained attorney and is afforded no inherent leniency simply by virtue of being

       self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Here, on

       more than one occasion, the court warned Mamon of the risks of proceeding

       pro se, and Mamon insisted on exercising his right to do so. Because Mamon

       has not demonstrated that pre-trial counsel’s performance precluded him from

       taking any action to challenge the admission of evidence, the post-conviction

       court did not clearly err in denying Mamon’s petition in this respect.


       Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018   Page 7 of 8
[13]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018   Page 8 of 8
