Pursuant to Ind. Appellate Rule 65(D),
this 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 A. BATES                                       GREGORY F. ZOELLER
Schererville, Indiana                               Attorney General of Indiana

                                                    ELLEN H. MEILAENDER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                              Feb 28 2013, 9:26 am
                               IN THE
                     COURT OF APPEALS OF INDIANA

LARRY COLLINS, JR.,                                 )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )       No. 71A05-1206-PC-319
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                          The Honorable R. W. Chamblee, Jr., Judge
                               Cause No. 71D08-1104-PC-19



                                        February 28, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Larry Collins, Jr. (“Collins”) appeals from the denial of his petition for post-

conviction relief contending that his post-conviction relief counsel was ineffective.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       In 1997, the State charged Collins with one count of dealing in cocaine as a Class

A felony, one count of possession of cocaine as a Class C felony, and one count of

possession of marijuana as a Class A misdemeanor. At the time, Collins was represented

by Timothy McLaughlin (“McLaughlin”), privately-retained counsel. At the conclusion

of Collins’s jury trial, he was convicted of the misdemeanor marijuana charge, but the

jury hung on the remaining felony charges. Two days later McLaughlin withdrew from

his representation of Collins because Collins could not afford to retain counsel for a

second trial.

       Charles Walton, Jr. (“Walton”) was appointed to represent Collins. Walton filed

his appearance, a motion for discovery, and a motion to correct error on behalf of Collins.

He also attended a pre-trial conference in the matter. On the morning of the hearing on

Walton’s motion to correct error, McLaughlin appeared in court and signed a plea

agreement on behalf of Collins even though he had not filed a formal appearance with the

trial court. Collins was in attendance at the hearing. The motion to correct error was

withdrawn.

       Pursuant to the plea agreement, Collins agreed to plead guilty to an amended

charge of dealing in cocaine as a Class B felony and receive a set sentence of eleven

years executed. The State agreed to dismiss the original felony charges. The plea

                                             2
agreement was submitted to the trial court for consideration. At the hearing, Collins

stated among other things that he was pleased with McLaughlin’s representation and was

pleading guilty voluntarily.

       In April of 2011, Collins, who, at that time, was represented by attorney John

Maksimovich (“Maksimovich”) filed a petition for post-conviction relief. The petition

made the following allegations: 1) that Walton rendered ineffective assistance of counsel

by failing to do any work on behalf of Collins and by failing to appear at the change of

plea hearing; 2) that McLaughlin rendered ineffective assistance of counsel by coercing

Collins into pleading guilty because he was improperly motivated by his own financial

interest; and 3) that the State interfered with Walton’s relationship with Collins by

negotiating a plea agreement with McLaughlin.         Collins swore under oath to those

allegations set forth in the petition.

       Maksimovich appeared on behalf of Collins at the hearing on Collins’s petition

and relied on Collins’s sworn statements in the petition and exhibits which had been

attached to the petition as the only evidence in support of the claims. The post-conviction

court cautioned Maksimovich that he was testifying when counsel attempted to set forth

the chain of events. The post-conviction court asked Maksimovich what evidence he

wished to present in support of the petition, and Maksimovich confirmed that he did not

intend to call either Walton or McLaughlin as witnesses. Maksimovich further stated that

he did not wish to tender the transcript of the guilty plea hearing, because after reviewing

it, Maksimovich came to the conclusion that the trial court had asked all of the proper

questions and that Collins had given all of the proper answers, including his statements

                                             3
that he was pleased with McLaughlin’s representation of him and that he was pleading

guilty voluntarily.

       After responding to the post-conviction court’s inquiries about the evidence that

was not going to be offered in support of Collins’s claims, Maksimovich informed the

post-conviction court what he had presented was “all of the argument that I can and will

make.” Tr. at 24. The post-conviction court summarized Maksimovich’s position as

follows:

       So you’re simply making a motion for judgment on the pleading. You
       don’t plan on presenting any – any evidence surrounding any of the
       allegations made in the petition.

Id. at 12.

       The trial court ruled as follows at the conclusion of the hearing:

       Under all of the circumstances here, Mr. Maksimovich, I’m going to make
       a finding that Mr. Collins has failed to provide or present sufficient
       probative evidence to support his petition for post-conviction relief. That’s
       the single finding that will be in the petition. And I think I always—it will
       also have language that I will incorporate into the order, the comments,
       thoughts and findings I may have made during the course of this hearing as
       if completely set out in the order, which would then result in a denial of Mr.
       Collins’[s] petition for post-conviction relief.

Id. at 25. The trial court’s statement denying Collins’s petition for post-conviction relief

was reduced to a written order reflecting the same. Collins now appeals.

                            DISCUSSION AND DECISION

       Because Collins appeals from the trial court’s denial of his petition for post-

conviction relief, he appeals from a negative judgment. See Fisher v. State, 878 N.E.2d

457, 463 (Ind. Ct. App. 2007), trans. denied (appeal from denial of post-conviction relief


                                             4
is appeal from negative judgment). A petition must establish that the evidence as a whole

unmistakably and unerringly leads to a conclusion contrary to that of the post-conviction

court. Id. Upon review, we will disturb a post-conviction court’s decision as being

contrary to law only where we find that the evidence is without conflict and leads to but

one conclusion, and the post-conviction court has reached the opposite conclusion.

Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans. denied. The post-

conviction court is the sole judge of the weight of the evidence and the credibility of

witnesses. Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied. On

review, we accept the post-conviction court’s findings of fact unless they are clearly

erroneous, and no deference is given to its conclusions of law. Fisher, 878 N.E.2d at

463.

       Post-conviction proceedings do not afford a petitioner for post-conviction relief

the opportunity for a super appeal, but instead, provide the opportunity to raise issues that

were unknown or unavailable at the time of the original trial or the direct appeal. Ben-

Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164 (2002);

Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2007), trans. denied, cert. denied,

549 U.S. 1038 (2006). Post-conviction proceedings do not substitute for a direct appeal

and provide only a narrow remedy for subsequent collateral challenges to convictions.

Ben-Yisrayl, 738 N.E.2d at 258. The petition for post-conviction relief bears the burden

of proving the grounds raised by a preponderance of the evidence. Ind. Post-Conviction

Rule 1(5).



                                             5
       The procedural posture of Collins’s appeal is unique in that he has initiated a

direct appeal from the denial of his petition for post-conviction relief alleging the

ineffective assistance of post-conviction relief counsel. Thus, the evidence we have

before us is the transcript from the hearing on Collins’s petition for post-conviction relief,

the petition with accompanying exhibits, and the legal memorandum prepared by

Maksimovich on Collins’s behalf. We have no testimony from Maksimovich as to his

efforts to present Collins’s pursuit of post-conviction relief. However, it appears that

such a direct appeal from the denial of post-conviction relief contending ineffective

assistance of post-conviction relief counsel is not improper.

       In Bahm v. State, 789 N.E.2d 50 (Ind. Ct. App. 2003) (superseded by rule on other

grounds as stated in Mitchell v. State, 946 N.E.2d 640 (Ind. Ct. App. 2011) (pcr court

may take judicial notice of transcript of evidence from original proceedings)), a direct

appeal from the denial of post-conviction relief, the petitioner claimed that he had

received ineffective assistance of post-conviction relief counsel. The State contended

that the particular allegation could not be raised as an issue in an appeal from the denial

of a petition for post-conviction relief and was waived because the argument could not be

raised for the first time on appeal. Id. at 60 n.10. A panel of this court declined to find

that the issue was waived on the basis that it was not first raised in the petition for post-

conviction relief because it would require the petitioner to allege the ineffective

assistance of counsel who had not yet provided representation. Id. Relying on the

rationale that direct appeal counsel may present the argument that trial counsel provided



                                              6
ineffective assistance, we found no reason to draw a distinction between the two types of

proceedings and decided the issue on its merits. Id.

      Neither the Sixth Amendment to the United States Constitution nor Article 1, § 13

of the Indiana Constitution guarantee the right to counsel in post-conviction proceedings.

Daniels v. State, 741 N.E.2d 1177, 1190 (Ind. 2001). Instead, we conduct our review of

post-conviction counsel’s performance under the “highly deferential standard” announced

in Baum v. State, 533 N.E.2d 1200 (Ind. 1989). Id. Our Supreme Court stated as follows

in Baum:

      A petition for post-conviction relief is not generally regarded as a criminal
      proceeding and does not call for a public trial within the meaning of these
      constitutional provisions. It thus is not required that the constitutional
      standards be employed when judging the performance of counsel when
      prosecuting a post-conviction petition at the trial level or at the appellate
      level.

      We therefore apply a lesser standard responsive more to the due course of
      law or due process of law principles which are at the heart of the civil post-
      conviction remedy. We adopt the standard that if counsel in fact appeared
      and represented the petitioner in a procedurally fair setting which resulted
      in a judgment of the court, it is not necessary to judge his performance by
      the rigorous standard set forth in Strickland . . . .

533 N.E.2d at 1201. That said, in subsequent cases we have chosen to decide the issue

“upon the supposition that in some degree a post-conviction petitioner is entitled to

advice and assistance of counsel in a post-conviction proceeding, whether that

entitlement is conferred by constitution or otherwise.” Evans v. State, 809 N.E.2d 338,

342 (Ind. Ct. App. 2004).

      In appeals since the standard of review was announced in Baum, the issue of what

constitutes a procedurally fair setting has been explored. In Waters v. State, 574 N.E.2d

                                            7
911, 912 (Ind. 1991), our Supreme Court examined the situation where the trial court had

issued an order requiring all evidence in support of the petition for post-conviction relief

be tendered by affidavit only. Post-conviction counsel, who had entered an appearance in

the matter, did not tender any affidavits in support of the petition, and failed to correct

those affidavits tendered by the petitioner, pro se, which were technically inadequate.

The Supreme Court held that post-conviction relief counsel had in essence abandoned his

client thus depriving the petitioner of a fair hearing. Id.

       In Graves v. State, 823 N.E.2d 1193 (Ind. 2005), the Supreme Court examined the

representation provided by post-conviction counsel, which consisted of appearing at the

post-conviction hearing, examining the petitioner, and tendering relevant affidavits.

Although not achieving the relief sought, such conduct was held not to constitute an

abandonment of his client such that the petitioner was deprived of a fair hearing. Graves,

823 N.E.2d at 1197. Likewise, in Matheney v. State, 834 N.E.2d 658, 663 (Ind. 2005),

post-conviction counsel’s presentation of claims that were more likely to prevail, rather

than arguing other less viable claims, did not amount to an abandonment of the petitioner

such that he was deprived of a fair hearing.          However, reversal and remand was

warranted in appeals where post-conviction counsel appeared at the hearing, but

presented no evidence in support of the petitioner’s claims. See e.g. Taylor v. State, 882

N.E.2d 777, 784 (Ind. Ct. App. 2008) (counsel appeared at hearing and argued only that

co-defendant’s appellate decision warranted relief without calling witnesses, presenting

affidavits, or submitting record); Bahm v. State, 789 N.E.2d 50, 51 (Ind. Ct. App. 2003),

clarified on reh’g on other grounds, 794 N.E.2d 444 (Ind. Ct. App. 2003), trans. denied

                                               8
(counsel appeared at hearing and made legal argument but presented no evidence, called

no witnesses, submitted no affidavits, and did not submit direct appeal record).

       Collins argues that Maksimovich’s representation of his claims was more akin to

that requiring a reversal and remand as in Taylor and Bahm. Based upon our standard of

review of this appeal from a negative judgment, we disagree. A review of the transcript

of the hearing on Collins’s petition for post-conviction relief reflects that Collins received

the representation to which he was due.

       Maksimovich filed a petition for post-conviction relief on behalf of Collins

including an addendum setting forth the facts alleged by Collins with respect to his

claims. Further, Collins swore to the contents of and addendum to his petition under

oath. Allegations contained in a petition for post-conviction relief when made subject to

the penalties for perjury and signed by the petitioner under oath can constitute the

equivalent of an affidavit, and as such can be considered as evidence. State v. Cleland,

477 N.E.2d 537, 538 (Ind. 1985).         Our Supreme Court held that “absent a timely

objection by the State and under the circumstances of this case, the court could properly

consider them as evidence.” Id. The limiting language used there was later observed by

the Supreme Court in State v. Sanders, 596 N.E.2d 225, 227 (Ind. 1992) (if introduced for

limited purpose, verified pleading may not constitute evidence of alleged facts). Here,

there was no objection by the State, and Maksimovich did not rest on the pleadings in

presenting Collins’s claim.

       Exhibits such as the chronological case summary, Walton’s motions, and the plea

agreement, were attached to the petition. Maksimovich explained on the record that he

                                              9
had reviewed the guilty plea hearing transcript and chose not to tender it as evidence in

the hearing because it did not support Collins’s claims regarding Walton’s alleged

abandonment of him, McLaughlin’s alleged coercion, and the State’s alleged interference

in his attorney-client relationship. He also filed a written memorandum of law in support

of Collins’s petition.   Once it was determined that due to technological difficulties

Collins would not be able to appear by video at the hearing, when asked by the post-

conviction court if he wished to submit an affidavit from Collins, Maksimovich stated

that “[i]t would be identical to what’s in his petition for post-conviction relief.” Tr. at 18.

       The evidence as a whole, although sparse, does not unmistakably and unerringly

lead us to a conclusion contrary to that of the post-conviction court. Collins did not

present sufficient probative evidence to support the claims in his petition for post-

conviction relief. Further, the record reflects that Maksimovich did not abandon his

client, and Collins received a procedurally fair hearing.

       Affirmed.

MATHIAS, J., and CRONE, J., concur.




                                              10
