MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Dec 26 2019, 8:04 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




APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Sam Spicer, II                                           Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana
                                                         Evan M. Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Sam Spicer, II,                                          December 26, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-PC-145
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff.                                      Humphrey, Judge
                                                         Trial Court Cause No.
                                                         15C01-1604-PC-9



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019              Page 1 of 17
                                STATEMENT OF THE CASE
[1]   Appellant-Petitioner, Sam Spicer, II, (Spicer), appeals the post-conviction

      court’s denial of his petition for post-conviction relief (PCR).


[2]   We affirm.


                                                   ISSUES
[3]   Spicer presents two issues on appeal, which we restate as the following:


              (1) Whether Spicer’s freestanding claim that the trial court
                  abused its discretion when it denied his motion to withdraw
                  his guilty plea is procedurally defaulted; and


              (2) Whether the post-conviction court’s findings of fact and
                 conclusions of law denying his PCR are clearly erroneous.


                      FACTS AND PROCEDURAL HISTORY
[4]   The facts pertaining to Spicer’s underlying conviction for Class A felony

      conspiracy to commit dealing in methamphetamine are as follows:


              Following a tip, detectives of the Dearborn County Sheriff’s
              Department initiated an investigation into a possible
              methamphetamine manufacturing operation. Over a period of
              time, the detectives observed two individuals, later identified as
              Spicer and Lisa Ellis (“Ellis”), “continuously involved in the
              criminal activity” of transporting numerous individuals to
              pharmacies in Dearborn County, with the goal of purchasing
              pseudoephedrine.


              As part of the scheme, Spicer would deliver the pseudoephedrine
              to Vernis Newton (“Newton”) in Ohio and to an unnamed
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 2 of 17
        individual in Kentucky; methamphetamine was manufactured in
        both locations. Each ninety-six count box of pseudoephedrine
        that was purchased could produce approximately two grams of
        methamphetamine. Spicer and Newton had an arrangement by
        which Newton would give Spicer one gram of
        methamphetamine, and Newton would keep the rest. Spicer, in
        turn, kept one half gram of methamphetamine for himself and
        gave the other half to the individual who had purchased the box
        of pseudoephedrine. The people involved in this conspiracy were
        mostly addicts and undereducated, some having only an eighth
        grade education.


        The probable cause affidavit, signed by Detectives Norman
        Rimstidt and Carl Pieczonka, described various purchases
        observed by the detectives. In all, the detectives saw individuals
        purchasing five-and-a-half boxes of pseudoephedrine, an amount
        detectives estimated “is equivalent to 15.84 grams of
        pseudoephedrine.” This amount of pseudoephedrine was “well
        in excess of what it would take to manufacture more than three
        grams of methamphetamine.”


        On February 14, 2014, the State charged Spicer and
        approximately twenty-four other co-defendants with Class A
        felony conspiracy to commit dealing in methamphetamine in an
        amount of three grams or more. The overt act alleged to be in
        furtherance of the agreement was the purchase of
        pseudoephedrine for the manufacture of methamphetamine.


Spicer v. State, No. 15A05-1409-CR-410, (Ind. Ct. App. May 12, 2015) (record

citations omitted), trans. denied. The trial court appointed a public defender

(Guilty Plea Counsel) to represent Spicer. Spicer invoked his right to a speedy

trial, and his jury trial was scheduled for April 7, 2014. The parties engaged in

discovery and plea negotiations. By April 4, 2014, the State had negotiated plea

Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 3 of 17
      bargains with over twenty of Spicer’s co-defendants, and the State had

      completed its trial preparation.


[5]   On April 4, 2014, which was the Friday before Spicer’s trial was to begin on

      Monday, the trial court was notified that the parties had entered into a plea

      agreement. 1 The trial court convened a guilty plea hearing. When the parties

      appeared in court, Guilty Plea Counsel informed the trial court that Spicer had

      changed his mind and had decided to exercise his right to a jury trial. The State

      verified that it was prepared for trial. The trial court confirmed Spicer’s trial

      date of April 7, 2014, and recessed the proceedings.


[6]   Later in the day on April 4, 2014, the trial court reconvened the proceedings

      because Spicer had decided to change his plea pursuant to a plea agreement

      wherein he would plead “open” to the Class A felony charge. (PCR Exh. 7,

      Exh. Vol. I, p. 136). When the parties appeared in court, Spicer indicated

      through Guilty Plea Counsel that he desired to have a specific paragraph

      removed from the plea agreement. The State would not agree to the proposed

      change and suggested that Spicer simply plead guilty without having any plea

      agreement in place.


[7]   Before taking Spicer’s change of plea, the trial court verified with Spicer that he

      understood his trial rights, understood that he was waiving them with his plea,

      had not been offered anything or been threatened to induce his plea, and that he



      1
          The record is silent regarding the terms of the original plea agreement.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 4 of 17
      felt that his plea was his own free choice and decision. The trial court also

      verified with Spicer that he understood that he was pleading “open” to the

      Class A felony charge which carried a possible sentencing range of between

      twenty and fifty years, with an advisory sentence of thirty years. (PCR Exh. 7,

      Exh. Vol. I, p. 137). Spicer confirmed to the trial court that he wished to plead

      guilty despite understanding that his criminal record could be considered by the

      trial court as a basis for increasing his sentence. Spicer established a factual

      basis for his plea. The trial court accepted Spicer’s guilty plea and set the

      matter for sentencing for June 10, 2014. Spicer’s sentencing hearing was later

      rescheduled for July 24, 2014. Spicer’s pre-sentence investigation report

      revealed that Spicer had a criminal history dating from 2003 consisting of two

      prior felony convictions and five prior unrelated misdemeanor convictions.


[8]   Between his guilty plea hearing and sentencing, Spicer filed several letters and

      pro se motions with the trial court seeking to set aside his guilty plea. On June

      2, 2014, Spicer wrote a pro se letter to the trial court in which he claimed that he

      was firing Guilty Plea Counsel because, among other things, he alleged that

      Guilty Plea Counsel had advised him that he would “get no less or no more in

      the case [than] anybody else. Which the way I understood would be 20

      suspend 10 do 5 with [purposeful] incarceration, which now I believe otherwise

      now [sic].” (PCR Exh. 5, Exh. Vol. I, p. 57). In a pro se motion to withdraw

      guilty plea he filed with the trial court on July 3, 2014, Spicer alleged that

      Guilty Plea Counsel had been ineffective for failing to review the plea

      agreement with him prior to his change of plea and that his counsel had “no


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 5 of 17
       criminal justice knowledge.” (Guilty Plea App., Vol. I, p. 184). Spicer also

       asserted his innocence to the charge. In a second pro se motion to withdraw

       guilty plea filed with the trial court on July 14, 2014, Spicer argued that his plea

       should be set aside because he was asserting his innocence to the charge. Spicer

       also alleged that Guilty Plea Counsel had been ineffective but did not raise any

       detailed allegations.


[9]    On July 24, 2014, the trial court held a combined hearing on sentencing and on

       Spicer’s motions to set aside his guilty plea. The trial court first addressed

       Spicer’s motions to withdraw his plea. Spicer re-asserted his claim that Guilty

       Plea Counsel had advised him that he would get “no less and no more than

       anybody else in the case, and that’s the may [sic] reason I pled open to the A.”

       (PCR Exh. 7, Exh. Vol. I, p. 145). The trial court asked Guilty Plea Counsel

       for comment, and Guilty Plea Counsel informed the trial court that he had

       explained to Spicer what the different possibilities of resolving the case were,

       that he thought that the State had a strong case against Spicer, including a

       number of co-defendants who were willing to testify against him, and that

       Spicer had decided to plead guilty. Guilty Plea Counsel stated, “I thought that

       was in his best interests at that time . . . and I still do.” (PCR Exh. 7, Exh. Vol.

       I, p. 146). The trial court took Spicer’s motions to withdraw his guilty plea

       under advisement and proceeded to take evidence and argument for sentencing,

       which it also took under advisement.


[10]   On August 13, 2014, the trial court denied Spicer’s motions to set aside his plea.

       The trial court found that Spicer had admitted his factual guilt, Spicer had failed

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 6 of 17
       to demonstrate any incompetence by Guilty Plea Counsel, Spicer had failed to

       demonstrate that any manifest injustice would result if his plea was not

       withdrawn, and that the State would be significantly prejudiced if it were, as it

       had extended favorable plea agreements to over twenty of Spicer’s co-

       conspirators in order to procure their testimony for Spicer’s trial. On August

       13, 2014, the trial court also sentenced Spicer to forty years of incarceration.

       The trial court found Spicer’s guilty plea and hardship to his family as

       mitigating factors which were outweighed by the significant aggravating factors

       of the nature and circumstances of the crime, Spicer’s criminal record, and the

       fact that he was on probation for a felony conviction at the time of the offense.


[11]   Spicer pursued a direct appeal and raised two issues: (1) Whether the trial court

       considered improper aggravating circumstances for sentencing, and (2) whether

       the trial court’s sentence was inappropriate given his character and the nature of

       his offense. See Spicer, slip op. at 3-5. This court affirmed Spicer’s sentence. Id.

       at 5.


[12]   On April 25, 2016, Spicer filed his PCR, which he amended on June 1, 2018,

       after the public defender had withdrawn from his case. In his PCR, Spicer

       alleged that the trial court had abused its discretion in denying his motions to

       withdraw his guilty plea and that Guilty Plea Counsel had been ineffective for

       “misleading [Spicer] to believe if he took a plea that he would not get any more

       time [than] the rest of the defendants, which was the main reason why Spicer

       pled guilty[.]” (PCR App. Vol. II, p. 29). On August 24, 2018, and November

       20, 2018, the post-conviction court held evidentiary hearings on Spicer’s PCR.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 7 of 17
Guilty Plea Counsel testified that he recalled that Spicer was reluctant to go to

trial. Spicer asked Guilty Plea Counsel if he recalled telling Spicer that he

would get no more or less of a sentence than his co-defendants if he pleaded

guilty, that if Spicer took the case to trial he could get a forty or fifty-year

sentence, and that Spicer had to plead guilty open to the charge. Guilty Plea

Counsel responded that he “would have told you what your options were,

which ones I thought were most advisable. But I would never tell you a

guaranteed outcome of any option you might take.” (PCR Transcript Vol. I, p.

26). Guilty Plea Counsel explained that he would not have told Spicer that he

would get no more or less than his co-defendants because “different factors

come up, and it’s always at the discretion of the [c]ourt. All I can tell you is my

feelings about how things are likely to turn out, but I would never guarantee

anything like that.” (PCR Tr. Vol. I, p. 27). When Spicer posited that he

simply took Guilty Plea Counsel’s word for what he said Spicer would receive

as a sentence, Guilty Plea Counsel responded, “I never gave you my word on

what outcome you would receive under any scenario.” (PCR Tr. Vol. I, p. 27).

Spicer’s sister, Ruby Spicer (Ruby), also testified at the hearing on Spicer’s PCR

in support of his theory that Guilty Plea Counsel had informed Spicer he would

receive a sentence no more and no less severe than his co-defendants. On

December 6, 2018, both Spicer and the State submitted proposed findings of

fact and conclusions of law to the post-conviction court.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 8 of 17
[13]   On December 18, 2018, the post-conviction court entered its Order denying

       Spicer’s PCR, in support of which it entered the following relevant findings of

       fact and conclusions of law:


               21. [Guilty Plea Counsel] testified that he did not recall ever
               telling Mr. Spicer that if he pled open, he would receive “no
               more or no less than anybody else in the case.”


               ****


               23. [Guilty Plea Counsel] testified that he would “never tell you
               [Spicer] a guaranteed outcome of any option you might take.”


               ****


               26. Ruby Spicer testified that [Guilty Plea Counsel] had a
               discussion with Ruby in which he claimed Spicer would not
               receive worse than any other co-defendant if he were to plead
               open to the single charged count, and that “the Judge would
               probably be more lenient, in fact, on him taking it.”


               27. Ruby Spicer also stated, when asked by the [c]ourt, that her
               testimony as to what [Guilty Plea Counsel] said was “what I got
               out of the conversation.”


               28. Spicer presented no further evidence at [the] hearing beyond
               the testimony of [Guilty Plea Counsel] and Ruby Spicer.


               ****




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 9 of 17
        31. Spicer similarly did not enter the record of the proceedings
        into evidence, nor request the [c]ourt to take judicial notice of
        any record of proceedings.


        ****


        43. Additionally, the [c]ourt finds Spicer’s proffered evidence
        that he was “promised” to receive no less than any of the other
        co-defendants’ sentences by pleading open to the [c]ourt to be
        unpersuasive.


(PCR App. Vol. II, pp. 12-13, 15). The post-conviction court found Ruby’s

testimony to be “suspect,” given that eighteen of his co-defendants had pleaded

to Class D felony charges, one co-defendant had judgment on his Class D

felony conviction entered as a Class A misdemeanor, three co-defendants

pleaded to single Class B felony charges, and one co-defendant pleaded to a

Class A felony charge with a fixed sentence of thirty years with fifteen years

suspended. (PCR App. Vol. II, p. 15). The post-conviction court found that


        it is illogical to believe that an attorney would guarantee Spicer
        that he would receive “no more or less” than the twenty-four (24)
        co-defendants, when such light sentences for all but one (1) co-
        defendant were legally impossible to obtain for Spicer because he
        was pleading guilty to the Class A Felony. He could not
        reasonably expect to receive the same sentence as his co-
        defendants when they negotiated for and received lesser charges.


(PCR App. Vol. II, p. 15). Because it found that Spicer had failed to show that

Guilty Plea Counsel had rendered deficient performance, the post-conviction



Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 10 of 17
       court declined to determine whether Spicer had suffered any prejudice as a

       result of Guilty Plea Counsel’s representation.


[14]   Spicer now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                         I. Withdrawal of Guilty Plea

[15]   Spicer contends that the trial court abused its discretion when it denied his

       motion to withdraw his guilty plea. More specifically, he argues that a

       withdrawal of his plea was merited because he entered his plea based on

       mistaken sentencing advice and because he professed his innocence to the trial

       court prior to sentencing. The State responds that Spicer was procedurally

       barred from bringing that claim in his PCR and that it is not available for our

       review. We agree with the State.


[16]   As a general rule, a defendant is permitted to move to withdraw his guilty plea

       prior to sentencing. See Ind. Code § 35-35-1-4(b). However, once a defendant

       has moved the trial court for the withdrawal of his plea and the trial court

       denies the motion, a direct appeal is the proper avenue for contesting the trial

       court’s decision. Brightman v. State, 758 N.E.2d 41, 44 (Ind. 2001). If a

       defendant fails to raise the issue that was available for direct appeal, it is waived

       and cannot be raised in a post-conviction proceeding. See Mills v. State, 868

       N.E.2d 446, 452 (Ind. 2007).


[17]   Here, Spicer moved the trial court to withdraw his plea prior to sentencing. At

       the July 24, 2014, combined plea withdrawal and sentencing hearing, the trial
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 11 of 17
       court heard evidence on Spicer’s motions and took the matter under

       advisement. On August 13, 2014, the trial court denied Spicer’s motions to

       withdraw his plea. Spicer pursued a direct appeal but did not raise the issue of

       the trial court’s denial of his motions to withdraw. Therefore, the issue was

       waived, was not properly raised in Spicer’s PCR, and is not available for our

       review. See id.


                                         II. Ineffectiveness of Counsel

                                              A. Standard of Review

[18]   Spicer appeals following the post-conviction court’s denial of relief. PCR

       proceedings are civil proceedings in which a petitioner may present limited

       collateral challenges to a criminal conviction and sentence. Weisheit v. State,

       109 N.E.3d 978, 983 (Ind. 2018). In a PCR proceeding, the petitioner bears the

       burden of establishing his claims by a preponderance of the evidence. Id.

       When a petitioner appeals from the denial of his PCR, he stands in the position

       of one appealing from a negative judgment. Hollowell v. State, 19 N.E.3d 263,

       269 (Ind. 2014). To prevail on appeal from the denial of a PCR, the petitioner

       must show that the evidence “as a whole leads unerringly and unmistakably to

       a conclusion opposite that reached by the post-conviction court.” Id. In

       addition, where a post-conviction court makes findings of fact and conclusions

       of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer

       to its legal conclusions, but we will reverse its findings and judgment only upon

       a showing of clear error, meaning error which leaves us with a definite and firm

       conviction that a mistake has been made. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 12 of 17
                                         B. Findings and Conclusions

[19]   Before proceeding to Spicer’s argument of ineffective assistance of counsel, we

       will address two brief preliminary arguments made by Spicer regarding the post-

       conviction court’s findings and conclusions. Spicer first draws our attention to

       the fact the post-conviction court’s order “is a verbatim adoption of the State’s

       proffered findings and conclusions.” (Appellant’s Br. pp. 13-14). Spicer does

       not argue that he was deprived of a fair and full adjudication of his PCR, but he

       correctly notes that our supreme court has observed that the wholesale adoption

       of a party’s findings results in “an inevitable erosion of the confidence of an

       appellate court that the findings reflect the considered judgment of the trial

       court.” Prowell v. State, 741 N.E.2d 704, 709 (Ind. 2001). Nevertheless, in light

       of the high volume of cases presided over by trial court judges and the need to

       “keep the docket moving,” our supreme court has declined to prohibit the

       practice. Id. at 708-09.


[20]   Our review of the post-conviction court’s Order revealed that it made some

       non-substantive changes to the State’s proposed findings and conclusions, and,

       therefore, there is evidence that the post-conviction court did not simply

       rubberstamp the State’s proposed order. We are cognizant that Spicer declined

       to waive the post-conviction court’s thirty-day deadline for entering its Order.

       However, we do not promote such near-wholesale adoptions of proposed

       orders, because, as noted by our supreme court, it endangers the perception of

       the judiciary as providing full, fair, and unbiased determinations. Id. at 709.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 13 of 17
[21]   Spicer also challenges the post-conviction court’s finding that he “did not enter

       the record of the proceedings into evidence, nor request the [c]ourt to take

       judicial notice of any record of proceedings.” (PCR App. Vol. II, p. 13). Our

       review leads us to conclude that this finding does not enjoy support in the

       record. Spicer’s proffered PCR Exhibits 1-7, consisting of relevant portions of

       the record of proceedings in the underlying Class A felony case and transcripts

       of the guilty plea hearing and hearing on Spicer’s motions to withdraw his plea,

       were admitted into evidence at the PCR hearing without objection. In addition,

       on June 1, 2018, Spicer had moved the post-conviction court to take judicial

       notice of its own records, and the post-conviction court granted the motion on

       June 21, 2018. We also note that this finding was one of the State’s proposed

       findings adopted by the post-conviction court and that the State itself requested

       at the PCR hearing that the post-conviction court take judicial notice of the

       record of proceedings in the underlying case, a request that the post-conviction

       court granted.


[22]   We conclude that this finding is clearly erroneous. However, Spicer does not

       argue that this finding undermines the post-conviction court’s legal conclusion

       that his counsel’s performance was not deficient, and, as more fully explained

       below, we conclude that the post-conviction court’s determination in that

       regard was not clearly erroneous. In addition, the Order denying relief contains

       several findings of fact regarding the underlying proceedings. Therefore, we




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 14 of 17
       conclude that Spicer has failed to demonstrate that he was prejudiced by the

       post-conviction court’s erroneous finding. 2


                                      C. Ineffective Assistance of Counsel

[23]   Spicer also argues that he received ineffective assistance because Guilty Plea

       Counsel provided him with inaccurate advice regarding the sentence Spicer

       would receive, advice that caused Spicer to plead guilty to the offense. We

       evaluate ineffective assistance of counsel claims under the two-part test

       articulated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on such

       a claim, a petitioner must show that 1) his counsel’s performance was deficient

       based on prevailing professional norms; and 2) that the deficient performance

       prejudiced the defense. Weisheit v. State, 109 N.E.3d 978, 983 (Ind. 2018) (citing

       Strickland, 466 U.S. at 687). In analyzing whether counsel’s performance was

       deficient, we determine whether, upon consideration all of the circumstances,

       counsel’s actions were reasonable under prevailing professional norms. Id. To

       demonstrate sufficient prejudice in the context of a defendant’s decision to

       plead guilty based on the allegedly deficient advice of guilty plea counsel, the

       petitioner must show that there is a reasonable probability that, but for his

       counsel’s unprofessional errors, “he would not have pleaded guilty and would

       have insisted on going to trial.” Bobadilla v. State, 117 N.E.3d 1272, 1285 (Ind.

       2019) (quoting Jae Lee v. United States, — U.S. —, 137 S.Ct. 1958, 1965, 198




       2
         The remainder of Spicer’s preliminary arguments are addressed by our resolution of his main arguments on
       appeal.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019             Page 15 of 17
       L.Ed.2d 476 (2017)). A petitioner’s failure to satisfy either the ‘performance’ or

       the ‘prejudice’ prong of a Strickland analysis will cause an ineffective assistance

       of counsel claim to fail. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006).


[24]   Here, Spicer claimed in his PCR that Guilty Plea Counsel’s performance was

       deficient because he inaccurately advised Spicer that “he would not get any

       more time [than] the rest of the defendants, which was the main reason why

       Spicer pled guilty[.]” (PCR App. Vol. II, p. 29). Guilty Plea Counsel testified

       at the PCR hearing that he would not have guaranteed Spicer the outcome of

       any of the options for proceeding that he had discussed with Spicer. Guilty

       Plea Counsel more specifically testified that he would not have guaranteed

       Spicer that he would receive no more or less time than his co-defendants

       because “different factors come up, and it’s always at the discretion of the

       [c]ourt.” (PCR Tr. Vol. I, p. 27). The post-conviction court rejected Ruby’s

       testimony as suspect and unpersuasive, and it ultimately rejected Spicer’s

       allegation that Guilty Plea Counsel had advised him in the manner Spicer

       claimed. In light of Guilty Plea Counsel’s testimony, we cannot say that the

       evidence “as a whole leads unerringly and unmistakably to a conclusion

       opposite that reached by the post-conviction court[,]” which is our standard of

       review following the denial of a PCR. See Hollowell, 19 N.E.3d at 269. The

       post-conviction court’s determination that Guilty Plea Counsel’s performance




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019   Page 16 of 17
       was not deficient was not clearly erroneous, and, therefore, we affirm the post-

       conviction court’s denial of relief. 3


                                               CONCLUSION
[25]   Based on the foregoing, we conclude that Spicer’s claim that the trial court

       abused its discretion when it denied his motion to withdraw his guilty plea is

       procedurally defaulted and that the post-conviction court’s conclusion that he

       was not denied the effective assistance of counsel was not clearly erroneous.


[26]   Affirmed.


[27]   Baker, J. and Brown, J. concur




       3
         Because Spicer has failed to establish any grounds for relief based upon his counsel’s performance, we do
       not engage in any analysis of the prejudice prong of the Strickland analysis. See Taylor, 840 N.E.2d at 331.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-145 | December 26, 2019                 Page 17 of 17
