MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          Nov 29 2016, 8:18 am
regarded as precedent or cited before any
                                                                    CLERK
court except for the purpose of establishing                    Indiana Supreme Court
                                                                   Court of Appeals
the defense of res judicata, collateral                              and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Buford G. Lee                                           Gregory F. Zoeller
Pendleton, Indiana                                      Attorney General of Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Buford G. Lee,                                          November 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        10A04-1505-PC-525
        v.                                              Appeal from the Clark Circuit
                                                        Court
State of Indiana,                                       The Honorable Vicki L.
Appellee-Plaintiff.                                     Carmichael, Judge
                                                        Trial Court Cause No.
                                                        10C04-1405-PC-7



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 1 of 19
                                   STATEMENT OF THE CASE

[1]   Appellant-Petitioner, Buford G. Lee (Lee), appeals the post-conviction court’s

      denial of his petition for post-conviction relief, in which he had challenged his

      conviction for dealing a narcotic drug within 1,000 feet of a family housing

      complex, a Class A felony, Ind. Code § 35-48-4-1(b)(3)(B)(iii) (2013).


[2]   We affirm.


                                                   ISSUES

[3]   Lee raises seven issues on appeal, which we consolidate and restate as the

      following three issues:

      (1) Whether the post-conviction court erred by failing to issue findings of fact

      and conclusions of law on all issues presented for review;

      (2) Whether Lee received ineffective assistance of trial counsel;

      (3) Whether the post-conviction court erred by failing to continue the post-

      conviction hearing in order for Lee to subpoena additional witnesses.


                           FACTS AND PROCEDURAL HISTORY

[4]   On September 17, 2013, and September 23, 2013, the Jeffersonville Police

      Department utilized a confidential informant to purchase heroin from Lee. On

      both occasions, the confidential informant met with Lee at the Jeffersonville

      Housing Authority in Jeffersonville, Clark County, Indiana, where he

      exchanged law enforcement funds for approximately .15 grams and .25 grams,

      respectively, of heroin. During the controlled drug buys, the detectives



      Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 2 of 19
      maintained surveillance, and the confidential informant was equipped with an

      electronic recording device.


[5]   On October 8, 2013, the State filed an Information, charging Lee with Count I,

      dealing a narcotic drug within 1,000 feet of a family housing complex, a Class

      A felony, I.C. § 35-48-4-1(b)(3)(B)(iii) (2013); Count II, possession of a narcotic

      drug within 1,000 feet of a family housing complex, a Class B felony, I.C. § 35-

      48-4-6(b)(2)(B)(iii) (2013); Count III, dealing a narcotic drug within 1,000 feet

      of a family housing complex, a Class A felony, I.C. § 35-48-4-1(b)(3)(B)(iii)

      (2013); Count IV, possession of a narcotic drug within 1,000 feet of a family

      housing complex, a Class B felony, I.C. § 35-48-4-6(b)(2)(B)(iii) (2013); and

      Count V, conspiracy to commit dealing a narcotic drug within 1,000 feet of a

      family housing complex, a Class A felony, I.C. §§ 35-41-5-2; -48-4-1(b)(3)(B)(iii)

      (2013). The State also charged Lee as a habitual offender pursuant to Indiana

      Code section 35-50-2-8(a).


[6]   On October 9, 2013, an arrest warrant was issued, and Lee was taken into

      custody. On October 16, 2013, the trial court held Lee’s initial hearing, during

      which Lee requested a fast and speedy trial, and the trial court appointed a

      public defender to represent Lee. On October 21, 2013, a public defender,

      Christopher Sturgeon (Attorney Sturgeon), entered his appearance on Lee’s

      behalf. Within days of taking Lee’s case, Attorney Sturgeon issued subpoenas

      to the detectives involved in the controlled drug transactions for depositions,

      which were conducted on December 4, 2013.



      Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 3 of 19
[7]   A jury trial commenced on December 10, 2013. On the second day of trial, the

      State, while examining one of the detectives involved in the case, offered into

      evidence the video recording of at least one of the controlled drug purchases.

      Shortly thereafter, Lee—via Attorney Sturgeon—moved for a mistrial when the

      State elicited testimony from the detective which purportedly violated a motion

      in limine. The trial court called for a recess and met with the attorneys in

      chambers, during which the State proposed a plea deal. Under the terms of the

      plea deal, Lee would plead guilty to one Count of dealing in a narcotic drug as

      a Class A felony in exchange for the State’s dismissal of the remaining charges.

      Furthermore, the State would also dismiss all of the charges in two other

      pending cases, which included a Class A felony charge for dealing cocaine or a

      narcotic drug, two Class B felony charges for possession of cocaine or a narcotic

      drug, and two habitual offender charges. Attorney Sturgeon presented the offer

      to Lee and advised him to accept, which Lee did. The trial court subsequently

      advised Lee of his rights and found a factual basis for the plea. After finding

      that Lee’s plea was made freely and voluntarily, the trial court accepted the plea

      agreement and entered a judgment of conviction for a Class A felony charge of

      dealing in a narcotic drug.


[8]   On January 13, 2014, the trial court held a sentencing hearing. At the

      beginning of the hearing, Lee informed the trial court that he wished to

      withdraw his guilty plea based on information that he recently learned after his

      co-defendant, Paul Overton (Overton), provided him with copies of the

      depositions of the detectives who were involved in the controlled drug


      Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 4 of 19
      transactions. Because the trial court had already accepted the plea agreement

      and entered a judgment of conviction, it declined Lee’s request and advised him

      that he could file a petition for post-conviction relief. Thereafter, the trial court

      sentenced Lee to a term of twenty-five years, with twenty years executed in the

      Indiana Department of Correction and five years suspended to probation.


[9]   On July 21, 2014, Lee, pro se, filed an Amended Petition for Post-Conviction

      Relief. In his petition, Lee alleged that Attorney Sturgeon had provided

      ineffective assistance of counsel, in relevant part, by failing to adequately

      investigate prior to trial and refusing to file the motions requested by Lee; by

      withholding evidence from Lee; and by pressuring Lee to sign the plea deal

      despite the State’s lack of evidence. Lee further alleged that the trial court had

      demonstrated prejudice by allowing the detective to accompany the attorneys

      into the trial judge’s chambers after the detective testified about Lee’s prior bad

      acts in violation of a motion in limine; by failing to rule on an objection that the

      jury had been prejudiced by the detective’s testimony; and by denying Lee’s

      right to withdraw from the guilty plea upon discovering certain evidence in the

      depositions that were withheld by Attorney Sturgeon. On November 17, 2014,

      the post-conviction court conducted a post-conviction relief hearing. At the

      close of the evidence, the post-conviction court granted the parties thirty days in

      which to file proposed findings of fact and conclusions of law. On December

      15, 2014, the State submitted its proposed order. On April 14, 2015, Lee

      submitted his proposed findings of fact and conclusions of law.




      Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 5 of 19
[10]   On April 20, 2015, the post-conviction court issued its Findings of Fact,

       Conclusions of Law and Judgment, denying Lee’s petition. In particular, the

       post-conviction court concluded that Lee failed to establish that he received

       ineffective assistance of counsel and further determined that Lee failed to

       establish that he was prejudiced by any of the other alleged errors. The post-

       conviction court stated that it was


               persuaded that if [Lee’s] case had been decided by the jury there
               is [a] high probability that he would not have received an
               acquittal. The large amount of evidence including audio and
               video of [Lee] and his actions during the drug transaction
               presented in the probable cause affidavit show the end result
               would have been conviction even had counsel acted as [Lee]
               suggests. The greater the amount of evidence showing [Lee]
               committed the crime the greater his burden to show he was
               prejudiced.


       (Appellant’s Br. p. 33). Additionally, the post-conviction court found no error

       in the trial court’s refusal to allow Lee to withdraw from his guilty plea because

       “to do so would have resurrected two cases with serious drug charges,” and

       “[t]he demand on judicial resources of granting [Lee] a new trial on three cases

       appears unwarranted.” (Appellant’s Br. p. 33).


[11]   Lee now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

                                             I. Standard of Review

[12]   A post-conviction proceeding affords the petitioner an “opportunity to raise

       issues that were unknown or unavailable at the time of the original trial or the
       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 6 of 19
       direct appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007)

       (citing Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S.

       1164 (2002)), trans. denied. However, a post-conviction proceeding does not

       constitute “a super appeal,” and it “provide[s] only a narrow remedy for

       subsequent collateral challenges to convictions.” Id. (citing Ben-Yisrayl, 738

       N.E.2d at 258). Post-conviction proceedings are civil in nature, and, therefore,

       the petitioner bears the burden of establishing his grounds for relief by a

       preponderance of the evidence. Stevens v. State, 770 N.E.2d 739, 745 (Ind.

       2002), cert. denied, 540 U.S. 830 (2003); see Ind. Post-Conviction Rule 1(5).


[13]   When appealing the denial of a petition for post-conviction relief, “the

       petitioner stands in the position of one appealing from a negative judgment.”

       Willoughby v. State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied. Our

       court does not reweigh evidence or assess the credibility of witnesses. Id.


               In order to prevail, the petitioner must show that the evidence is
               without conflict and leads unerringly and unmistakably to a
               conclusion opposite that reached by the post-conviction court. It
               is only where the evidence is without conflict and leads to but
               one conclusion, and the post-conviction court has reached the
               opposite conclusion, that the decision will be disturbed as being
               contrary to law.


       Id. (internal citation and quotation marks omitted).


                  II. Post-Conviction Court’s Findings of Fact and Conclusions of Law

[14]   Lee challenges the post-conviction court’s issuance of factual findings and

       conclusions of law. Pursuant to Indiana Post-Conviction Rule 1(6), the post-

       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 7 of 19
       conviction court is required to “make specific findings of fact[] and conclusions

       of law on all issues presented.” On appeal, our court accepts the post-

       conviction court’s factual findings “unless they are ‘clearly erroneous’” but we

       owe no deference to the post-conviction court’s legal conclusions. Stevens, 770

       N.E.2d at 746 (quoting Ind. Trial Rule 52(A)).


[15]   Here, Lee asserts that “the problem is the trial court adopted the findings of the

       [State] when the [State] submitted [its] findings before [Lee] filed his Findings

       of Fact and Conclusions of Law. Which shows the court did not answer the

       issues presented for review.” (Appellant’s Br. p. 13). We find no basis for this

       contention in the record. The Chronological Case Summary (CCS) establishes

       that the State filed its proposed findings and conclusions on December 15,

       2014, which was within the thirty-day deadline following the post-conviction

       hearing. Lee filed his proposed findings and conclusions on April 14, 2015.

       Thereafter, on April 20, 2015, the post-conviction court issued its Findings of

       Fact, Conclusions of Law and Judgment. Thus, while the post-conviction court

       did adopt the proposed findings and conclusions of the State verbatim, it did

       not do so prior to receiving Lee’s proposed order for consideration.


[16]   Although the wholesale adoption of a party’s proposed findings is not

       prohibited, our supreme court has noted that such a practice “erodes confidence

       that they reflect the considered judgment of the post-conviction court.”

       Thompson v. State, 796 N.E.2d 834, 840 (Ind. Ct. App. 2003) (citing Stevens, 770

       N.E.2d at 762), trans. denied. As support for his position that the post-

       conviction court’s adoption of the State’s proposed findings reveals that it failed

       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 8 of 19
       to adequately consider all of the issues, Lee vaguely argues that the “trial court

       would have known it could not deny an affirmative right to terminate counsel.”

       (Appellant’s Br. p. 14). Under a different section of his appellate brief, Lee

       explains that on November 15, 2013, he submitted a notarized request to the

       trial court to terminate Attorney Sturgeon and proceed pro se, but the CCS lacks

       any indication that such a document was ever filed, and the trial court never

       acknowledged the request.


[17]   We agree with Lee that the post-conviction court’s findings do not address the

       matter of an alleged violation of his Sixth Amendment right to self-

       representation; however, this is because Lee never raised this issue in his

       petition for post-conviction relief. Because Lee never presented the issue of a

       Sixth Amendment violation to the post-conviction court for consideration, it

       cannot be said that the post-conviction court erred in failing to address this

       matter in its factual findings and legal conclusions. Moreover, Lee has waived

       review of any Sixth Amendment violation by raising the issue for the first time

       on appeal. See Stevens, 770 N.E.2d at 746 (“Any ‘[i]ssues not raised in the

       petition for post-conviction relief may not be raised for the first time on post-

       conviction appeal.’” (alteration in original) (quoting Allen v. State, 749 N.E.2d

       1158, 1171 (Ind. 2001))). 1




       1
         Thus, we do not address Lee’s separate claim that he was denied due process of law by virtue of the trial
       court’s failure to allow him to terminate Attorney Sturgeon and proceed pro se.

       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016           Page 9 of 19
                                 III. Ineffective Assistance of Trial Counsel

[18]   Lee next claims that Attorney Sturgeon provided ineffective assistance of

       counsel. To prevail on an ineffective assistance of counsel claim, a petitioner

       must establish “both that his counsel’s performance was deficient and that the

       petitioner was prejudiced by the deficient performance.” McCullough v. State,

       987 N.E.2d 1173, 1176 (Ind. Ct. App. 2013) (citing Strickland v. Washington, 466

       U.S. 668, 687 (1984), reh’g denied). A claim of ineffective assistance of counsel

       will be rejected if the petitioner fails to satisfy either prong. Id. Thus, if we are

       able to “dismiss an ineffective assistance claim on the prejudice prong, we need

       not address whether counsel’s performance was deficient.” Id. (quoting Lee v.

       State, 892 N.E.2d 1231, 1233 (Ind. 2008)).


[19]   An attorney’s performance is considered deficient “if it falls below an objective

       standard of reasonableness based on prevailing professional norms.” Id. It is

       well established that “[c]ounsel is accorded considerable discretion in choosing

       strategy and tactics, and we will accord those decisions deference.” Id. We are

       mindful that there is a strong presumption “that counsel rendered adequate

       assistance and made all significant decisions in the exercise of reasonable

       professional judgment.” Id. In order to establish that he was prejudiced by

       Attorney Sturgeon’s performance, Lee “must show that there is a reasonable

       probability that, but for counsel’s unprofessional errors, the result of the

       proceeding would have been different. A reasonable probability is a probability

       sufficient to undermine confidence in the outcome.” Id. (citations omitted).




       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 10 of 19
[20]   According to Lee, when Attorney Sturgeon presented the State’s plea deal to

       Lee in the midst of the trial, Attorney Sturgeon purportedly informed him that

       he would be found guilty because the detectives would testify that they

       witnessed Lee handing the drugs to the confidential informant (although there

       is no support in the record for this supposed conversation between Attorney

       Sturgeon and Lee). However, after Lee pled guilty, he received a copy of the

       detectives’ depositions from Overton, his co-defendant. Based on his review of

       the depositions, the probable cause affidavit, and the video recordings, Lee

       asserts that the evidence establishes that it was actually Overton who personally

       delivered the heroin to the confidential informant. Thus, Lee now contends

       that he

                chose to plead guilty on the advice of [Attorney Sturgeon]
                knowing the facts of his case, specifically, the statement of the
                detectives as to what the detectives would testify too [sic]. [Lee]
                did not know of the depositions and trusted [Attorney Sturgeon]
                to let him know the facts of the case, and all information about
                the case.


       (Appellant’s Br. p. 15). According to Lee, “[t]his clearly shows the

       involuntariness of the plea.” (Appellant’s Br. p. 16). 2 “Moreover, when [Lee]

       requested in writing to [Attorney Sturgeon] that he wanted to withdraw [the]



       2
         In his appellate brief, Lee raises a separate argument that he is entitled to post-conviction relief because his
       plea was neither voluntarily nor intelligently made. However, this argument is simply a reiteration of his
       ineffective assistance of counsel claim. Moreover, Lee has waived such an argument on appeal because he
       did not claim in his post-conviction petition that his plea was involuntary and unintelligent, and he has
       further failed to develop such a cogent, appropriately-cited argument on appeal. See Stevens, 770 N.E.2d at
       746; Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016              Page 11 of 19
       plea, [Attorney Sturgeon] failed to file [a] [m]otion to [w]ithdraw [the] [p]lea”

       pursuant to Indiana Code section 35-35-1-4(b). (Appellant’s Br. p. 16). 3


[21]   The decision to enter into a guilty plea, although unquestionably influenced by

       an attorney’s advice, ultimately belongs to the defendant. Manzano v. State, 12

       N.E.3d 321, 326-27 (Ind. Ct. App. 2014) (quoting State v. Van Cleave, 674

       N.E.2d 1293, 1301 (Ind. 1996)), trans. denied; cert. denied, 135 S.Ct. 2376 (2015).

       As such, a claim of ineffective assistance of counsel relating to a guilty plea is

       distinct “from the tactical or investigatory steps that are the bases of most

       claims of ineffective assistance of counsel.” Id. at 326. There are two categories

       of claims for ineffective assistance of trial counsel following a guilty plea: “(1)

       failure to advise the defendant on an issue that impairs or overlooks a defense

       and (2) an incorrect advisement of penal consequences.” McCullough, 987

       N.E.2d at 1176 (citing Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001)).


[22]   In this case, Lee contends that Attorney Sturgeon misadvised him as to what

       the State’s evidence would reveal, which led him to plead guilty. Essentially,

       Lee argues that his innocence defense was impaired by Attorney Sturgeon’s




       3
         Although raised in his petition for post-conviction relief, Lee does not contend on appeal that the trial court
       abused its discretion by declining to allow him to withdraw from the guilty plea; thus, the issue is waived.
       See App. R. 46(A)(8)(a). Rather, Lee’s argument is limited to an ineffective assistance of counsel claim based
       on Attorney Sturgeon’s advice about the State’s evidence and his failure to file a written motion to withdraw
       the plea agreement. However, Lee has waived his argument regarding Attorney Sturgeon’s failure to file a
       written motion to withdraw the plea agreement as Lee failed to raise the issue in his petition for post-
       conviction relief. See Stevens, 770 N.E.2d at 746. We note that at the post-conviction hearing, Lee simply
       asked Attorney Sturgeon whether he had received a letter from Lee indicating Lee’s desire to withdraw from
       the plea, but Lee did nothing to further develop this possible claim of error before the post-conviction court.

       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016            Page 12 of 19
       misinformation, and he would not have pled guilty had he realized that the

       evidence actually revealed that it was Overton who physically handed the

       narcotics to the confidential informant. Therefore, Lee’s claim falls into the

       first category of ineffective assistance claims relating to guilty pleas: a failure to

       advise the defendant on an issue that impairs or overlooks a defense. In order

       to prevail, Lee must show


               a reasonable probability of success at trial if the alleged error is
               one that would have affected a defense. . . . A new trial is of
               course necessary if an unreliable plea has been accepted. But its
               costs should not be imposed needlessly, and that would be the
               result if the petitioner cannot show a reasonable probability that
               the ultimate result—conviction—would not have occurred
               despite counsel’s error as to a defense.


       Id. at 1177 (ellipsis in original) (quoting Segura, 749 N.E.2d at 503).


[23]   We find that Lee has failed to satisfy his burden of establishing that the result of

       his proceeding would have been different even if Attorney Sturgeon had

       advised Lee that the detectives never witnessed Lee personally handing heroin

       to the confidential informant. As the State points out, during at least one of the

       controlled drug transactions at the Jeffersonville Housing Authority, Lee was

       observed by a detective and recorded on video as he accepted money from the

       confidential informant. Lee then handed the purchased heroin to Overton,

       who, in turn, transferred the drugs to the confidential informant. This is

       sufficient to support Lee’s conviction for dealing in narcotics as a Class A

       felony. See I.C. § 35-48-4-1(a)(1)(C),(b)(3)(B)(iii) (2013) (providing that it is a


       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 13 of 19
       Class A felony to knowingly or intentionally deliver a narcotic drug within

       1,000 feet of a family housing complex); see also I.C. § 35-48-1-11 (defining

       “delivery” for the purposes of delivering a controlled substance as “(1) an actual

       or constructive transfer from one (1) person to another of a controlled

       substance, whether or not there is an agency relationship; or (2) the organizing

       or supervising of an activity described in subdivision (1)”). Thus, based on the

       ample evidence of his guilt, Lee has failed to establish a reasonable probability

       that he would not have been convicted had he proceeded with the jury trial.


[24]   Moreover, if Lee had declined the plea agreement, he would have been subject

       to criminal liability for additional charges in the present case, including: two

       Class A felonies for dealing in narcotics and conspiracy to commit dealing in

       narcotics, two Class B felonies for possession of narcotics, and a habitual

       offender charge. Based on the fact that Lee’s second controlled drug

       transaction was also recorded, there is a reasonable probability that the jury

       would have convicted him of some or all of these additional charges.

       Furthermore, had Lee not accepted the plea agreement, he would not have

       received the benefit of having his charges dismissed in two unrelated cases.


[25]   Lee also claims that Attorney Sturgeon was ineffective by failing “to object to

       the fact there was no Pre Sentence Report to rely on to sentence [Lee], because

       Indiana Statute mandates a Presentence Report for a person pleading or being

       convicted of a felony charge.” (Appellant’s Br. p. 17). Lee further contends

       that he did not receive a fair sentencing hearing because he



       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 14 of 19
               would have submitted additional witnesses that would have
               testified about the character of [Lee] and the other positive things
               [Lee] have [sic] done, and other issues. These issues would have
               allowed the [trial court] to consider mitigating circumstances had
               [Lee] been found guilty after trial or if he wished to proceed with
               pleading guilty and receive sentence.


       (Appellant’s Br. p. 19). We find that Lee has waived this issue for review by

       raising it for the first time on appeal. See Stevens, 770 N.E.2d at 746.


[26]   Waiver notwithstanding, we find that Lee’s argument is not only meritless, it is

       also a blatant misrepresentation of the facts. The transcript of the sentencing

       hearing, which was filed as an exhibit with the post-conviction court, makes it

       abundantly clear that a pre-sentence investigation (PSI) report was completed

       prior to sentencing. In fact, at the beginning of the sentencing hearing, the trial

       court stated:


               Probation has indicated to me that there was a problem in the
               preparation of the PSI, although they have done the best they
               can, produced one [sic]. But that problem, as indicated in a letter
               of January 7th, 2014, was that . . . Lee, while in custody[,] stated
               that he did not plan on accepting a [p]lea [a]greement currently
               filed with the [c]ourt and was not going to speak with the
               [p]robation [o]fficer assigned to do the PSI. And therefore she
               has done the best she could with the . . . limited information that
               she had.


       (Exh. C-1, p. 4). Thereafter, Attorney Sturgeon acknowledged that he had

       received a copy of the PSI report and had provided the same to Lee. Thus, it is

       absurd for Lee to now attempt to argue that Attorney Sturgeon was somehow


       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 15 of 19
       ineffective in light of the fact that any inadequacies in the PSI report were

       purely the result of Lee’s own willful refusal to cooperate with the probation

       department. Therefore, we conclude that Lee did not receive ineffective

       assistance of counsel.


                                                 IV. Subpoenas

[27]   Lastly, Lee claims that the post-conviction court erred by refusing to continue

       the post-conviction hearing in order for Lee to secure additional witnesses—

       specifically, the detectives who investigated his case; his co-defendant, Overton;

       and another inmate who was not directly linked to Lee’s case. Pursuant to

       Indiana Post-Conviction Rule 1(9):

               If the pro se petitioner requests issuance of subpoenas for
               witnesses at an evidentiary hearing, the petitioner shall
               specifically state by affidavit the reason the witness’ testimony is
               required and the substance of the witness’ expected testimony. If
               the court finds the witness’ testimony would be relevant and
               probative, the court shall order that the subpoena be issued. If
               the court finds the proposed witness’ testimony is not relevant
               and probative, it shall enter a finding on the record and refuse to
               issue the subpoena.


[28]   According to the CCS, the post-conviction hearing was initially set for August

       5, 2014, but was later reset to September 15, 2014. On July 3, 2014, Lee filed a

       Praecipe for Issuance of Subpoena(s) to secure Attorney Sturgeon, Overton,

       another inmate, and three Jeffersonville Police Department detectives as

       witnesses on September 15, 2014. The trial court granted Lee’s request, and on

       August 6, 2014, the subpoenas were issued, which directed Lee’s witnesses to

       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 16 of 19
       appear on September 15, 2014. However, on August 19, 2014, the State filed

       an objection to the issuance of subpoenas based on Lee’s failure to submit

       affidavits with the witnesses’ expected testimony. On August 26, 2014, the

       post-conviction court ordered Lee to submit affidavits specifying the substance

       of the witnesses’ testimony and why their testimony was required. Although

       the subpoenas were already served, it does not appear that Lee ever complied

       with the post-conviction court’s order to file affidavits. Subsequent to the

       issuance of the subpoenas, the post-conviction hearing date was rescheduled to

       November 17, 2014, due to Attorney Sturgeon’s unavailability. Lee never

       requested that the subpoenas be re-issued to reflect the new hearing date.


[29]   At the post-conviction hearing, Lee called Attorney Sturgeon, his brother, and

       his wife to testify. Thereafter, even though Lee had not subpoenaed his

       remaining witnesses for this hearing date, Lee nevertheless requested that the

       post-conviction court continue the matter in order to secure these witnesses.

       Instead, the post-conviction court asked Lee to explain to what he would expect

       his witnesses to testify. Lee elaborated that the three detectives “would testify

       to the giving of deposition of the things that took place as far as what transpired

       in my case.” (Tr. p. 65). Additionally, Lee stated that Overton would testify

       that Overton overheard Attorney Sturgeon informing Lee

               that I have no grounds to get anything suppressed. I should take
               the plea because if I don’t take the plea, I’m going to get fifty (50)
               years on the dope case because the police, they going to take me
               to trial for the cocaine case and the officer was supposed to testify
               that he seen me throw it, that what give me fifty (50) years on a
               Class B [f]elony with a habitual . . . which there’s no way
       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 17 of 19
               possible I can get fifty (50) years on that case. And Mr. Overton
               would also testify that him giving me copies of the deposition
               because I had, because of the results of what took place during
               the trial date.


       (Tr. pp. 66-67). Finally, as to Lee’s last witness, a fellow inmate, Lee stated

       that this witness

               would testify to being in the hallway at another time when
               [Attorney] Sturgeon came to meet with me and we were
               discussing the strategy of my case and as far as, like, what
               evidence they had as far as the, him telling me that he seen the
               tapes and I asked him, you know, if you seen the tapes, let me
               see the tapes, and he’d tell me, nah, that he can’t [do] that, and
               him lunging, making an aggressive movement towards me.


       (Tr. p. 68). The post-conviction court found that the detectives’ appearance was

       not necessary because “their depositions [would] speak for themselves.” (Tr. p.

       69). As to the other witnesses, the post-conviction court declined to continue

       the matter because “[Lee] already told me what they would testify to, so I don’t

       need to hear it from them.” (Tr. p. 69).


[30]   We find no error in the post-conviction court’s refusal to continue the matter in

       order to hear from additional witnesses. Lee failed to comply with Indiana

       Post-Conviction Rule 1(9) by requesting the issuance of subpoenas with the

       updated hearing date and by filing affidavits with each witness’ expected

       testimony. Furthermore, it was entirely within the post-conviction court’s

       discretion to determine that the anticipated testimony of Lee’s witnesses was

       not relevant or probative. See Rondeau v. State, 48 N.E.3d 907, 916 (Ind. Ct.

       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 18 of 19
       App. 2016) (noting the standard for denying subpoenas in a post-conviction

       proceeding as being an abuse of discretion), trans. denied. Here, the post-

       conviction court clearly found that the testimony of the detectives was neither

       relevant nor probative as such testimony would merely be repetitive of their

       depositions. Likewise, the anticipated testimony of Overton and the other

       inmate was largely cumulative of Lee’s other evidence which suggested that

       Attorney Sturgeon withheld evidence from Lee. We also note that Lee had not

       alleged in his post-conviction relief petition that Attorney Sturgeon made any

       aggressive movement toward him. Therefore, we conclude that the post-

       conviction court properly exercised its discretion in declining to continue the

       hearing to allow for Lee to subpoena additional witnesses.


                                              CONCLUSION

[31]   Based on the foregoing, we conclude that the post-conviction court properly

       denied Lee’s petition for post-conviction relief.


[32]   Affirmed.


[33]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016   Page 19 of 19
