Pursuant to Ind. Appellate Rule 65(D),

                                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                      Nov 08 2012, 9:29 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
                                                                 CLERK
case.                                                          of the supreme court,
                                                               court of appeals and
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ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                GREGORY F. ZOELLER
Public Defender of Indiana                      Attorney General of Indiana

J. MICHAEL SAUER                                MONIKA PREKOPA TALBOT
Deputy Public Defender                          Deputy Attorney General
Indianapolis, Indiana                           Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

CLAY R. FIRESTONE,                              )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )       No. 32A01-1201-PC-32
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE HENDRICKS SUPERIOR COURT
                           The Honorable Karen M. Love, Judge
                               Cause No. 32D03-0606-PC-3


                                     November 8, 2012

                OPINION ON REHEARING - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
       Clay Firestone has petitioned for rehearing of this Court’s decision in Firestone v.

State, No. 32A01-1201-PC-32 (Ind. Ct. App. Sept. 13, 2012), in which we affirmed the

post-conviction court’s denial of Firestone’s petition for post-conviction relief and

remanded to the lower court to correct Firestone’s sentence by assigning his habitual

offender enhancement to one of his convictions. We grant the petition for rehearing for

the limited purpose of clarifying our reasoning but reaffirm our opinion in all respects.

       Firestone contends that our decision contains factual mistakes, and he cites to our

statement in the opinion that he did not “direct us to any testimony or evidence in support

of his claim” that his trial counsel knew about the photo lineup and recorded interview

prior to trial. Slip op. p. 2. In support of his argument, he points to a section from his

appellant’s brief containing citations to discovery responses and exhibits in the appendix

and to statements by counsel and between counsel and the court during trial in the trial

transcript.

       To clarify, the statement in the opinion that Firestone had not directed us to any

testimony or evidence in support of his claim was intended to refer to the lack of

testimony or evidence from the post-conviction hearing.            Trial counsel did not

acknowledge at the post-conviction hearing that he was actually aware of the contents of

these pieces of evidence, although he may well have been provided these items prior to

trial. In any event, as we stated in our original opinion, counsel’s knowledge is of no

moment because Firestone failed to meet his burden of showing prejudice. See id. at 2-3.



                                             2
      The remainder of Firestone’s arguments in his petition for rehearing merely

restates the arguments submitted in his appellant’s brief. We determined in our original

opinion that Firestone failed to demonstrate prejudice on his post-conviction claim of

ineffective assistance of trial counsel, and his petition presents nothing that warrants

rehearing.

      Subject to the foregoing clarification, our opinion is in all respects affirmed.

NAJAM, J., and PYLE, J., concur.




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