      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                               Jul 30 2015, 5:43 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Mark W. Rutherford                                        Gregory F. Zoeller
      Thrasher Buschmann & Voelkel, P.C.                        Attorney General of Indiana
      Indianapolis, Indiana
                                                                Monika Prekopa Talbot
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jeremy Farris,                                            July 30, 2015

      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                67A04-1411-CR-533
              v.                                                Appeal from the Putnam Circuit
                                                                Court.
                                                                The Honorable Jeffrey V. Boles,
      State of Indiana,                                         Special Judge.
      Appellee-Respondent.                                      Cause No. 67C01-0411-FA-120




      Garrard, Senior Judge

[1]   Jeremy Farris appeals the post-conviction court’s denial of his motion for

      partial summary disposition. We affirm.


[2]   In August 2005, a jury determined that Farris was guilty of murder, a felony;

      battery on a child causing death, a Class A felony; dealing in

      Court of Appeals of Indiana | Memorandum Decision 67A04-1411-CR-533 | July 30, 2015              Page 1 of 6
      methamphetamine, a class B felony; possession of methamphetamine, a class D

      felony; possession of marijuana, a class A misdemeanor; and possession of

      paraphernalia, a class A misdemeanor. The State had presented evidence

      including testimony from Manuwell Ross, who had been incarcerated with

      Farris after Farris’s arrest. Ross described for the jury several incriminating

      statements by Farris. Ross also testified that the State had not offered him any

      leniency in exchange for his testimony against Farris. Within a month of

      testifying against Farris, the State dismissed two criminal cases against Ross

      and a petition to revoke Ross’s probation in a third case.


[3]   Farris appealed his convictions. In a memorandum decision, the Court

      affirmed in part the trial court’s judgment but remanded with instructions to

      vacate the convictions of possession of methamphetamine and battery on a

      child causing death. Next, Farris filed with the Court a petition for rehearing.

      The Court granted rehearing but did not change the memorandum decision.


[4]   Next, Farris filed a petition for post-conviction relief. He alleged ineffective

      assistance of trial counsel. He also raised a claim of newly discovered evidence.

      Specifically, Farris claimed he had discovered that the State had dismissed two

      cases against Ross and a petition to revoke Ross’s probation, and that the

      dismissals were proof of a deal between the State and Ross that should have

      been disclosed at trial.


[5]   Farris filed a motion for partial disposition, accompanied by a designation of

      evidence and memorandum of law. He argued, among other claims, that he


      Court of Appeals of Indiana | Memorandum Decision 67A04-1411-CR-533 | July 30, 2015   Page 2 of 6
      was entitled to summary disposition of his claim of newly discovered evidence.

      The State filed a response, and the post-conviction court denied Farris’s motion.


[6]   The post-conviction court held an evidentiary hearing on Farris’s petition for

      post-conviction relief. After the hearing, the post-conviction court issued
                                                                                                 1
      findings of fact and conclusions thereon, denying Farris’s petition. This appeal

      followed.


[7]   Farris claims that the post-conviction court should have granted his motion for

      partial summary disposition because he demonstrated that Ross made a deal

      with the State for his testimony against Farris. He concludes that the deal is

      newly discovered evidence that requires a new trial.


[8]   The State argues that Farris’s claim is moot because the post-conviction court

      issued a final judgment after denying his motion for partial summary

      disposition. We disagree with the State and address Farris’s claim. See Kindred

      v. State, 674 N.E.2d 570, 576 (Ind. Ct. App. 1996) (addressing the denial of

      petitioner’s motion for partial summary disposition even though the post-

      conviction court also issued a final judgment on the petition for post-conviction

      relief), trans. denied.




      1
        Farris did not include the final judgment in his Appellant’s Appendix. Instead, he merely attached the final
      judgment to his Notice of Appeal. Although he purports to appeal the denial of his motion for partial
      summary disposition rather than the final judgment, we remind Farris that the Appellant’s Appendix should
      contain “parts of the record on appeal that are necessary for the Court to decide the issues presented.” Ind.
      Appellate Rule 50(A)(1).

      Court of Appeals of Indiana | Memorandum Decision 67A04-1411-CR-533 | July 30, 2015                Page 3 of 6
[9]    Indiana Post-Conviction Rule 1(4)(g) provides, in relevant part:

               The court may grant a motion by either party for summary
               disposition of the petition when it appears from the pleadings,
               depositions, answers to interrogatories, admissions, stipulations
               of fact, and any affidavits submitted, that there is no genuine
               issue of material fact and the moving party is entitled to
               judgment as a matter of law.
[10]   This appeal turns on whether Farris proved the absence of a genuine issue of

       material fact as to the existence of a leniency agreement between Ross and the

       State at the time of Farris’s trial. A prosecutor has a duty to disclose to the jury

       “a confirmed promise of leniency in exchange for testimony.” Rubalcada v.

       State, 731 N.E.2d 1015, 1024 (Ind. 2000). When a witness hopes for leniency in

       exchange for testimony, and the State neither confirms nor denies that hope,

       there is no concrete agreement requiring disclosure. Id. Preliminary

       discussions are not matters which are subject to mandatory disclosure. Seketa v.

       State, 817 N.E.2d 690, 694 (Ind. Ct. App. 2004).


[11]   In this case, the evidence presented to the post-conviction court on summary

       disposition was as follows. Ross was released from jail to home detention on or

       shortly after the day he told the sheriff about Farris’s incriminating statements.

       At that time, Ross had two misdemeanor criminal cases pending against him,

       as well as a petition to revoke probation in a third case. In all three cases, Ross

       and the State jointly filed status reports with the court indicating that they were

       discussing plea agreements.




       Court of Appeals of Indiana | Memorandum Decision 67A04-1411-CR-533 | July 30, 2015   Page 4 of 6
[12]   Farris’s case proceeded to trial. Ross testified that he did not have any deal

       with the State for leniency. The jury returned its verdict in August 2005. In

       September 2005, the State dismissed the two pending cases against Ross and the

       petition to revoke Ross’s probation. The State denied the existence of any

       leniency agreement with Ross in its post-conviction discovery responses.


[13]   This evidence does not establish the absence of a genuine issue of material fact

       as to the existence of a leniency agreement at the time of Farris’s trial. Ross’s

       release to home detention may not necessarily have been related to informing

       on Farris, and it was Farris’s burden to establish a link. The plea negotiations

       between Ross and the State while his cases were pending appear to have been

       preliminary discussions rather than confirmed promises. Finally, the mere

       dismissal of Ross’s pending cases after testifying against Farris is insufficient to

       indisputably establish the existence of a leniency agreement, and the State

       denied the existence of such an agreement. See Lambert v. State, 743 N.E.2d

       719, 749 (Ind. 2001) (insufficient proof of a leniency agreement where a witness

       was released from prison on a sentence modification approved by the State six

       days after testifying against the defendant).


[14]   In Rubalcada, our supreme court ruled that


               When a witness hopes for leniency in exchange for his testimony
               and the State neither confirms nor denies that hope, there is no
               concrete agreement requiring disclosure. The witness’s
               expectations, coupled with evidence of a deal after the in-court
               testimony of the witness, are insufficient to require that a
               disclosure be made.

       Court of Appeals of Indiana | Memorandum Decision 67A04-1411-CR-533 | July 30, 2015   Page 5 of 6
       731 N.E.2d at 1024 (citations omitted).


[15]   Thus, as a matter of law, Farris’s evidence fails to disclose the existence of a

       leniency agreement that was required to be disclosed at his trial. Therefore,

       partial summary disposition was properly denied. For the same reason, Farris’s

       claim of newly discovered evidence fails because the evidence would have no

       likelihood of changing the result at trial.


[16]   For the reasons stated above, we affirm the trial court’s judgment.


[17]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 67A04-1411-CR-533 | July 30, 2015   Page 6 of 6
