MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 May 31 2017, 8:46 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Caroline B. Briggs                                     Curtis T. Hill, Jr.
Lafayette, Indiana                                     Attorney General of Indiana

                                                       James B. Martin
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Clarence W. Seeley, Jr.,                               May 31, 2017
                                                       Court of Appeals Case No.
Appellant-Defendant,                                   21A05-1607-PC-1548
        v.                                             Appeal from the Fayette Circuit
                                                       Court
State of Indiana,                                      The Honorable Beth Ann Butsch,
                                                       Judge
Appellee-Plaintiff.
                                                       Trial Court Cause No.
                                                       21C01-1108-PC-718



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 21A05-1607-PC-1548 | May 31, 2017                Page 1 of 6
                                      Statement of the Case
[1]   Clarence Seeley, Jr. was convicted of dealing in a schedule III controlled

      substance, as a Class A felony, following a jury trial. Seeley subsequently

      petitioned for post-conviction relief, which the post-conviction court denied.

      He now appeals, challenging the post-conviction court’s judgment, and he

      raises two issues for our review:


              1.      Whether he was denied the effective assistance of trial
                      counsel.

              2.      Whether the trial court erred when it did not hold a
                      sentencing hearing on remand from his direct appeal.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts and procedural history underlying Seeley’s 2010 conviction and

      sentence are as follows:

              Sometime between 5:00 and 6:00 p.m. on December 4, 2008,
              Seeley sold twenty pills containing hydroquinone, a schedule III
              controlled substance, to a confidential informant in a controlled
              drug buy for $140. The controlled drug buy occurred at Seeley’s
              home in Connersville and lasted between five and ten minutes. []
              Seeley’s property was 545 feet from St. Gabriel’s school property,
              and Seeley’s front door was 810 feet from the door to the school.
              On April 13, 2009, the State charged Seeley with dealing in a
              schedule III controlled substance, as a Class A felony. See Ind.
              Code § 35-48-4-2(b)(2) (2008). On April 15, the State alleged that
              Seeley was an habitual offender based on at least two prior,
              unrelated felony convictions. See I.C. § 35-50-2-8(a). The State’s

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              habitual offender allegation did not allege that any of the prior
              convictions were drug offenses.

                                                    ***

              The jury found Seeley guilty of both dealing within 1,000 feet of
              school property and of being an habitual offender. The court
              then sentenced Seeley to eighty years executed in the Department
              of Correction.


      Seeley v. State, 936 N.E.2d 863, 865-66 (Ind. Ct. App. 2010), trans. denied (“Seeley

      I”). On direct appeal, this court affirmed Seeley’s conviction, but the State

      conceded, and we agreed, that the State had not presented sufficient evidence to

      support the habitual offender adjudication. Id. at 871. Accordingly, we

      affirmed in part, reversed in part, and remanded for resentencing.


[4]   On August 11, 2011, Seeley filed a pro se petition for post-conviction relief

      alleging ineffective assistance of counsel. Seeley also alleged that, because his

      habitual offender adjudication was reversed, he was entitled to a new

      sentencing hearing, which he had been denied. Following a hearing, the post-

      conviction court denied Seeley’s petition. This appeal ensued.


                                    Discussion and Decision
                                           Standard of Review

[5]   Seeley appeals the post-conviction court’s denial of his petition for post-

      conviction relief. Our standard of review is clear:

              The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
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              evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)
              (citations omitted). When appealing 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, a petitioner must show
              that the evidence as a whole leads unerringly and unmistakably
              to a conclusion opposite that reached by the post-conviction
              court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
              Further, the post-conviction court in this case made findings of
              fact and conclusions of law in accordance with Indiana 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) (internal quotation omitted).


      Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014) (alteration original to

      Campbell).


                        Issue One: Ineffective Assistance of Trial Counsel

[6]   Seeley first contends that, as a result of the State’s late disclosure of four

      witnesses and new evidence on the first day of trial, “he was deprived of the

      effective assistance of counsel in the plea bargaining process, a critical stage of

      the proceedings, and also at trial.” Appellant’s Br. at 12. In particular, Seeley

      states that he


              does not claim that [his trial counsel] failed to adequately
              represent him at trial because of anything she did. Rather, he
              claims that the State rendered her ineffective and interfered with
              her ability to advise him regarding a plea agreement and to


      Court of Appeals of Indiana | Memorandum Decision 21A05-1607-PC-1548 | May 31, 2017   Page 4 of 6
               prepare for trial when the State failed to follow the court orders
               to timely disclose witnesses and evidence it would present at trial.


      Appellant’s Reply Br. at 8. Thus, Seeley does not make a standard ineffective

      assistance of counsel claim with respect to his counsel’s performance. 1 Rather,

      he contends that the State rendered his trial counsel ineffective when it

      interfered with his counsel’s ability to make independent decisions about how

      to conduct his defense. See Strickland v. Washington, 466 U.S. 668, 686 (1984).

      We cannot agree.


[7]   Seeley is correct that the United States Supreme Court has recognized a

      “special subtype of Sixth Amendment violation” resulting from “‘direct

      governmental interference with the right to counsel.’” See United States v. Roy,

      No. 12-15093, 2017 WL 1488331, at *13 (11th Cir. April 26, 2017) (quoting

      Perry v. Leeke, 488 U.S. 272, 279 (1989)). But, in order to make such a claim,

      the alleged governmental interference must arise from either a statute or a court

      order.2 See id. Here, Seeley alleges that the State interfered with his counsel’s

      ability to advise him on whether to accept a plea offer when it added four




      1
        In response to the State’s late addition of four witnesses and new evidence, Seeley’s trial counsel made
      objections and moved to continue the trial. The trial court overruled her objections and denied the motion to
      continue. Seeley did not argue in Seeley I that the trial court abused its discretion when it overruled those
      objections and motion to continue.
      2
        In Strickland, 466 U.S. at 686, the Court listed the following examples of governmental interference with
      the right to counsel: Geders v. United States, 425 U.S. 80, 96 (1976) (bar on attorney-client consultation during
      overnight recess); Herring v. New York, 422 U.S. 853 (1975) (bar on summation at bench trial); Brooks v.
      Tennessee, 406 U.S. 605, 612-613 (1972) (requirement that defendant be first defense witness); Ferguson v.
      Georgia, 365 U.S. 570, 593-596 (1961) (bar on direct examination of defendant).

      Court of Appeals of Indiana | Memorandum Decision 21A05-1607-PC-1548 | May 31, 2017                   Page 5 of 6
      witnesses and proffered evidence it had not provided in discovery on the first

      day of trial. Seeley does not allege governmental interference either by way of a

      statute or a court order.3 Accordingly, Seeley’s claim cannot stand. See id. The

      post-conviction court did not err when it concluded that Seeley was not denied

      the effective assistance of trial counsel.


                                              Issue Two: Resentencing

[8]   Seeley also contends that the trial court erred when it did not conduct a “re-

      sentencing hearing” on remand from his direct appeal. Appellant’s Br. at 28.

      He maintains that he is “entitled to be sentenced on the basis of accurate

      information, which would include not being found to be an habitual offender.”

      Id. But that issue was known and available to Seeley after the trial court issued

      its sentencing order on remand, and Seeley did not appeal from that order.

      Issues available but not raised on direct appeal are waived. Hinesley v. State, 999

      N.E.2d 975, 981 (Ind. Ct. App. 2013), trans. denied. Accordingly, this issue is

      not available as a freestanding claim of fundamental error on petition for post-

      conviction relief. Id. at 988. The post-conviction court did not err when it

      denied Seeley’s petition for post-conviction relief.


[9]   Affirmed.


      Bailey, J., and May, J., concur.




      3
          Seeley does not attribute any governmental interference to the trial court, only to the prosecutor.


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