                                                                FILED
MEMORANDUM DECISION
                                                            Jun 30 2016, 6:44 am

Pursuant to Ind. Appellate Rule 65(D), this                     CLERK
                                                            Indiana Supreme Court
Memorandum Decision shall not be regarded                      Court of Appeals
                                                                 and Tax Court
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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Kenneth L. Zamarron                                      Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth L. Zamarron,                                     June 30, 2016
Appellant,                                               Court of Appeals Case No.
                                                         45A03-1601-PC-141
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee.                                                Judge
                                                         The Honorable Kathleen A.
                                                         Sullivan, Magistrate
                                                         Trial Court Cause No.
                                                         45G01-1010-PC-7



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016    Page 1 of 18
[1]   Kenneth L. Zamarron appeals the dismissal of his petition for post-conviction

      relief. Zamarron raises two issues which we consolidate and restate as whether

      the trial court abused its discretion by denying his motion to withdraw his

      petition or erred in dismissing his petition with prejudice. We affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Zamarron’s direct appeal follow:


              Gregory Grudzien (“Grudzien”) and Marianne Bobella
              (“Bobella”) were co-owners of a Hammond, Indiana business.
              Customarily, while Bobella worked the early evening shift,
              Grudzien would go to Bobella’s house to gather the mail and let
              her dog outside. On November 29, 2007, at about 8:30 p.m.,
              Grudzien called Bobella and told her that her house had been
              “ransacked.” (Tr. 35.) When Bobella arrived home
              approximately fifteen minutes later, Grudzien was lying dead in
              the street. He had suffered a skull fracture and multiple stab
              wounds. Bobella’s dog was lying dead in a pool of blood under
              the kitchen table.


              The front door windows of Bobella’s home had been broken;
              numerous items inside the house were broken or overturned. A
              Dodge Neon with a flat tire was parked in front of Bobella’s
              house. Inside it were several items of Bobella’s property.
              Grudzien’s blood was on the gearshift. The Neon was registered
              to the step-parent of Victor Hernandez (“Hernandez”).


              Approximately one half hour after Bobella was called home,
              Zamarron and Hernandez were seen walking in the middle of the
              street one block away from Bobella’s residence. As Jack and
              Loretta Simmons pulled their vehicle into their driveway,
              Zamarron and Hernandez approached the vehicle. Zamarron
              pounded on the windshield and yelled. He tried unsuccessfully

      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 2 of 18
              to open the driver’s side door. Loretta Simmons was able to
              drive away.


              Approximately five to six blocks from Bobella’s home, Ana and
              Doris Almaraz were seated in a vehicle at a gas station when
              Zamarron and Hernandez approached the vehicle. Zamarron
              demanded the key while Hernandez, holding an object that
              appeared to be a bloody kitchen knife, ordered Doris to get out of
              the vehicle. Ana refused to tender the key, and Zamarron
              doused her with gasoline. Doris began screaming, and the two
              men ran away.


              Police officers responded to reports of these various encounters.
              When the officers spotted Zamarron and Hernandez, they began
              to run. However, they were apprehended while still covered in
              blood later determined to be from Grudzien. Zamarron’s DNA
              was found inside the Bobella home, and his fingerprint was
              found on a bottle of liquor retrieved from the house. A shoeprint
              formed in Grudzien’s blood near his body was made by a
              Converse athletic shoe; Zamarron was wearing Converse athletic
              shoes when he was apprehended.


      Zamarron v. State, No. 45A05-0902-CR-83, slip op. at 2-3 (Ind. Ct. App.

      September 4, 2009), trans. denied.


[3]   The State charged Zamarron with ten criminal offenses, including murder,

      robbery, attempted carjacking, attempted criminal confinement, burglary, and

      cruelty to an animal. Id. at 3. At the conclusion of a jury trial on November

      24, 2008, Zamarron was found guilty as charged. Id. The trial court entered

      judgments of conviction on a single count of murder, robbery (reduced to a

      Class C felony), burglary, and cruelty to an animal, and two counts each of


      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 3 of 18
      attempted carjacking and attempted criminal confinement. Id. at 4. On

      January 5, 2009, Zamarron was sentenced to an aggregate term of

      imprisonment of ninety-seven years. Id. On direct appeal, Zamarron argued

      that the evidence was insufficient to support his convictions for murder,

      robbery, and cruelty to an animal, and we affirmed. Id. at 2.


[4]   On October 4, 2010, Zamarron filed a pro se petition for post-conviction relief

      and alleged that his trial counsel and appellate counsel were ineffective. On

      November 12, 2010, a public defender filed an appearance on behalf of

      Zamarron. On January 10, 2011, the public defender filed a motion to continue

      the post-conviction hearing. The next day, the court granted the motion to

      continue, rescheduled the hearing for May 2, 2011, and stated that “[t]his will

      be the last continuance of the hearing on the petition for post-conviction relief

      barring any extraordinary circumstances.” Appellant’s Appendix at 49.


[5]   On March 8, 2011, the public defender withdrew her appearance and moved for

      a continuance to allow Zamarron to be prepared if he wished to proceed pro se.

      On March 11, 2011, the court rescheduled the hearing to August 2, 2011, and

      directed the clerk to notify Zamarron that he may either hire private counsel or

      represent himself at the hearing.


[6]   On August 2, 2011, Zamarron orally requested a continuance. The court

      granted the motion and rescheduled the hearing to August 8, 2012. The court’s

      order states that “[t]his will be the last continuance of the hearing on the




      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 4 of 18
      petition for post-conviction relief barring any extraordinary circumstances.” Id.

      at 57.


[7]   On August 8, 2012, the court held a hearing. At the hearing, Zamarron stated:

      “I don’t have nothing to say.” Transcript at 3. After some discussion,

      Zamarron stated that the trial court committed a sentencing error and that he

      could not knowingly or intentionally commit murder if he was intoxicated and

      that he did not have the right mind set. The court told Zamarron that he would

      have to set forth evidence. Zamarron stated that he asked his lawyer about the

      Breathalyzer “to bring it up during the trial, and he didn’t, so it’s ineffective of

      [sic] counsel.” Id. at 8. The court asked Zamarron if he wanted it to accept the

      record of proceedings into evidence, and Zamarron said yes. The court

      indicated that it would obtain the record of proceedings from the appellate court

      and it would be admitted as an exhibit. The court stated that it would make

      him file findings of fact and conclusions of law and granted him one year to do

      so until August 9, 2013.


[8]   On August 26, 2013, the court ordered Zamarron to show cause on or before

      September 25, 2013, as to why his petition should not be dismissed for failure to

      prosecute. On September 25, 2013, Eduardo Fontanez filed an appearance on

      behalf of Zamarron and a motion for extension of time to file findings of fact

      and conclusions of law. The court gave Zamarron until December 16, 2013, to

      file his proposed findings of fact and conclusions of law.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 5 of 18
[9]    On December 20, 2013, the court entered an order observing that Zamarron

       had failed to timely file findings of fact and conclusions of law and ordering

       that he show cause on or before January 21, 2014, as to why the petition for

       post-conviction relief should not be dismissed for failure to prosecute.


[10]   On January 17, 2014, Zamarron filed a pro se motion to withdraw his petition

       for post-conviction relief without prejudice. On February 6, 2014, the State

       filed a response to Zamarron’s motion to withdraw, detailed the case history,

       and argued that the court consider denying Zamarron’s motion.


[11]   On February 6, 2014, the court denied Zamarron’s motion to withdraw without

       prejudice and ordered that he may either withdraw his petition with prejudice

       or he or his attorney must file proposed findings of fact and conclusions of law

       on or before March 14, 2014.


[12]   On February 27, 2014, Zamarron filed multiple motions. He filed a motion for

       indefinite extension of time asserting that he needed the record to effectively

       raise and argue his issues in his facts and findings, that he believed he would

       have the record within the next ninety days, that he is limited to less than two

       hours of law library time weekly, and that he would file a certificate of

       readiness once he had received the record and amended his petition. He filed a

       Motion for Original Copy of Direct Appeal Transcript(s), Oral Arguments and

       Appendices, Opinions and Original Record of Proceedings. He also filed a

       motion requesting that the court issue an order to the Clerk of the Supreme

       Court and Court of Appeals for the removal of the original record. He filed a


       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 6 of 18
       Motion to Hear Cause as to Why Petitioner Should be Granted a Second

       Evidentiary Hearing, and asserted that his ability to proceed pro se was hindered

       by his assumption that once he retained counsel, his counsel would promptly

       begin rendering his services, but counsel failed to perform his obligatory duties

       and his substantial rights were jeopardized and he was placed in a perilous

       position. Lastly, he filed a motion for leave to amend his petition and an

       affidavit of indigency.


[13]   The court granted Zamarron’s motion for indefinite extension of time in part

       and gave him until June 12, 2014, to file his proposed findings of fact and

       conclusions of law. The court denied Zamarron’s motion to issue an order to

       the Clerk of the Supreme Court and Court of Appeals regarding the records

       because “the records requested are in the possession of the Indiana Court of

       Appeals and this court is without jurisdiction to order its release.” Appellant’s

       Appendix at 95. The court ordered the State to file a response to Zamarron’s

       other motions.


[14]   On March 14, 2014, the State filed a response to Zamarron’s motion to admit

       the record into evidence observing that the court had already granted

       Zamarron’s request to admit the record at the August 8, 2012 hearing, and that

       it would leave it to the court’s discretion whether the record should be admitted

       as Petitioner’s Exhibit 1 given the repetitive nature of the request. The State

       filed a response to Zamarron’s motion for leave to amend his petition detailing

       the case history and requesting that the court deny the motion. The State also

       filed a response to Zamarron’s motion to hold a second evidentiary hearing and

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 7 of 18
       requested that the motion be denied given the significant amount of time that

       had passed and because Zamarron failed to make any specific showing why a

       second hearing was necessary.


[15]   On April 1, 2014, Zamarron, by Fontanez, filed a motion for extension of time

       to file findings of fact and conclusions of law. That same day, the court granted

       the motion in part.


[16]   On April 2, 2014, Zamarron filed a reply to the State’s response to his motion

       regarding a second evidentiary hearing in which he indicated that he was

       proceeding pro se. The court entered an order refusing to file Zamarron’s

       motion because he was represented by counsel.


[17]   On April 23, 2014, the court ordered Fontanez to appear on May 2, 2014, to

       show cause for his failure to comply with an earlier order that Fontanez notify

       the court as to whether he would remain in the case by April 15, 2014. On May

       2, 2014, the court held a hearing and issued an order indicating that Fontanez

       was to file notice “as to determination of counsel” before May 23, 2014. Id. at

       116. On May 21, 2014, Fontanez filed a motion to withdraw. On May 22,

       2014, the court entered an order granting Fontanez’s motion to withdraw and

       giving Zamarron until July 21, 2014, to file his proposed findings of fact and

       conclusions of law. On June 4, 2014, Zamarron filed a motion for continuance

       of one year to seek out the assistance of new counsel or “in the extreme

       alternative to prepare his Findings of Fact and Conclusions of Law.” Id. at 122.

       That same day, the court granted Zamarron’s motion in part and ordered


       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 8 of 18
       Zamarron to file proposed findings of fact and conclusions of law by July 21,

       2015, and advised him that “this will be the last continuance granted with or

       without counsel.” Id. at 124. The State subsequently filed an objection to

       Zamarron’s request for a continuance, and the court affirmed its June 4th order.


[18]   On January 26, 2015, in his direct appeal cause number, this court entered an

       order granting Zamarron’s motion to extend release of appellate record and

       ordering that Zamarron’s counsel either return the original record on appeal

       intact to the Office of the Clerk of the Court of Appeals or file a motion

       requesting additional time to retain the record. On April 15, 2015, this court

       issued an order under his direct appeal cause number granting Zamarron’s

       motion for a copy of the record and stating the Public Defender may cause the

       copy to be transmitted to Zamarron for examination “provided however, that if

       the Public Defender has agreed to serve as counsel for the Appellant and the

       Appellant wishes to continue to be represented by the Public Defender, then the

       Appellant is not entitled to a copy of the record of proceedings at public

       expense and the Public Defender is relieved of the obligation to make a copy of

       that record, any contrary language in this Order notwithstanding.” Id. at 203.


[19]   On July 20, 2015, Zamarron, pro se, filed a motion to withdraw his petition for

       post-conviction relief without prejudice. He alleged that filing proposed

       findings of fact and conclusions of law would be futile in light of the fact that he

       appeared pro se at the hearing and did not call any witnesses or present any

       evidence. He stated that his trial counsel “failed to investigate, confront and

       confer with client, present codefendant’s confession instead of lie.” Id. at 174.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 9 of 18
       Zamarron suggested that the evidence to convict him was insufficient and that

       his act of stabbing the man was justifiable because it was done in defense of

       Hernandez. Zamarron asserted that his trial counsel encouraged him to testify

       falsely that Hernandez and another person had involuntarily intoxicated him.

       He stated that his appellate counsel failed to raise the argument that his

       sentence was inappropriate. Zamarron contended that he could not develop

       evidence to support his assertions in the four years since he filed his petition

       because he was a juvenile incarcerated as an adult, most court documents were

       destroyed by the Department of Correction officers, his attempt at obtaining a

       copy of the record on appeal had been futile until recently, his post-conviction

       counsel was ineffective, and the appellate decision regarding his codefendant

       Hernandez was not published. Lastly, he stated that delaying the proceedings

       would allow him to receive a copy of the record, request subpoenas for counsel,

       submit evidence, gain a meaningful post-conviction hearing, and provide a

       better petition.


[20]   On August 5, 2015, the State filed a response to Zamarron’s motion requesting

       that the court deny the motion. The State asserted that, “[a]lthough

       [Zamarron] has provided reasons to the court why the delay is necessary, it is

       apparent from his motion that [he] would be requesting to re-open evidence,

       even though a hearing was already held almost three (3) years ago, following a

       one year delay of the original hearing date.” Id. at 227. The State argued that

       the court was well within its discretion to deny Zamarron’s motion given the

       ample time that had passed. That same day, the court denied Zamarron’s


       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 10 of 18
       motion to withdraw his petition without prejudice and directed him to file

       proposed findings of fact and conclusions of law or a motion to withdraw his

       petition for post-conviction relief with prejudice on or before October 5, 2015.


[21]   On August 10, 2015, Zamarron, pro se, filed an addendum to his motion to

       withdraw his petition for post-conviction relief without prejudice which asserted

       that he had received the Record on Appeal and that: (1) his trial counsel failed

       to tender an instruction or object when the trial court erred in permitting the

       jury to return a guilty verdict on murder without specifying whether the

       conviction was based on murder or felony murder; (2) his trial counsel failed to

       tender instruction to cure or object when the court erred in permitting the jury

       to return inconsistent verdicts of Counts I through IV and IX; (3) appellate

       counsel failed to raise either of the above issues as fundamental error; and (4)

       the trial court gave an instruction on accomplice liability but later stated that it

       could not tell who was the more aggressive perpetrator and sentenced

       Zamarron to two years more than Hernandez.


[22]   On September 16, 2015, the State filed a response to Zamarron’s addendum

       and continued to object to Zamarron’s motion and stated that the addendum

       did not appear to raise significant legal issues meriting the re-opening of the

       case for further hearings. That same day, the court entered an order denying

       Zamarron’s motion to withdraw his petition without prejudice and ordering

       him to file his proposed findings of fact and conclusions of law by December

       15, 2015.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 11 of 18
[23]   On December 11, 2015, Zamarron filed a “2nd and Final Addendum” to his

       motion to withdraw his petition and asserted that he found additional issues

       after receipt of the record on appeal and additional evidence supporting these

       issues. Id. at 239. He asserted that the addendum was intended to incorporate

       his July 2015 motion and his August 4, 2015 addendum. On December 17,

       2015, the court dismissed Zamarron’s petition for post-conviction relief with

       prejudice for failure to prosecute. The court’s order stated in part: “Instead of

       filing his proposed finding of fact and conclusions of law on December 15, 2015

       as ordered, the petitioner AGAIN moves to withdraw his petition for post-

       conviction relief without prejudice, even though that request has previously

       been denied on two (2) occasions.” Id. at 441. On January 14, 2016, Zamarron

       filed a notice of appeal. On January 15, 2016, Zamarron filed a “Corrected”

       version of his “Second and Final Addendum” to his motion to withdraw, and

       the court denied it as moot. Id. at 442.


                                                    Discussion

[24]   The issue is whether the trial court abused its discretion by denying Zamarron’s

       motion to withdraw his petition or erred in dismissing his petition with

       prejudice. Zamarron argues that the post-conviction court abused its discretion

       by denying his motion to withdraw without prejudice. Under the heading

       “Analysis,” he states:


               On 8-5-15, the State, responded, did not dispute the facts,
               acknowledged that petitioner correctly directed the court to Tapia
               v. State (Ind. 2001), and conceded that Petitioner has provided all
               the reasons why delay is necessary but that petitioner should not

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 12 of 18
                be allowed to reinitiate the entire process despite what Tapia
                says. The trial court’s decision to deny motion is clearly against
                the logic and effect of the facts and circumstances before the
                court and has rendered a motion to withdraw without prejudice
                useless if one cannot reinitiate.


       Appellant’s Brief at 9.


[25]   Also, under a separate argument heading in his brief, Zamarron argues that the

       post-conviction court erred by dismissing with prejudice his petition without an

       order to show cause “which voids the moot ruling for the Corrected 12-11-15

       Second and Final Addendum.” Id. He argues that an order to show cause why

       the petition should not be dismissed under Trial Rule 41(E) would have allowed

       him to “amend the 2nd addendum and Final with the corrected 2nd and Final

       addendum and file petitioner’s futile proposed findings of fact and conclusions

       of law, thereby making the most complete record of issues for appeal.” 1 Id. at

       10.


[26]   The State argues that the post-conviction court did not abuse its discretion

       when it denied Zamarron’s motion to withdraw his petition without prejudice

       and that Zamarron missed deadline after deadline and filed extension after




       1
         Ind. Trial Rule 41(E) provides: “Failure to prosecute civil actions or comply with rules. Whenever there
       has been a failure to comply with these rules or when no action has been taken in a civil case for a period of
       sixty [60] days, the court, on motion of a party or on its own motion shall order a hearing for the purpose of
       dismissing such case. The court shall enter an order of dismissal at plaintiff’s costs if the plaintiff shall not
       show sufficient cause at or before such hearing. Dismissal may be withheld or reinstatement of dismissal
       may be made subject to the condition that the plaintiff comply with these rules and diligently prosecute the
       action and upon such terms that the court in its discretion determines to be necessary to assure such diligent
       prosecution.”

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016                 Page 13 of 18
       extension, which the court was generous enough to grant. The State also

       argues that even if post-conviction courts must order dilatory pro se petitioners

       to show cause before dismissing their petitions, the court ordered Zamarron to

       show cause twice.


[27]   Ind. Post-Conviction Rule 1(4)(c) provides:

               At any time prior to entry of judgment the court may grant leave
               to withdraw the petition. The petitioner shall be given leave to
               amend the petition as a matter of right no later than sixty [60]
               days prior to the date the petition has been set for trial. Any later
               amendment of the petition shall be by leave of the court.


       “[T]he terms of Indiana Post-Conviction Rule 1(4)(c) give the trial court the

       discretion-but not a mandate-to allow the petitioner to withdraw the petition

       without prejudice . . . .” Tapia v. State, 753 N.E.2d 581, 584 (Ind. 2001).

       “[T]he plain language of the Rule compels us to review the post-conviction

       court’s actions in this regard under an abuse of discretion standard.” Id.

       Outside of the plain language of the rule, two additional arguments support an

       abuse of discretion review. Id. First, employing an abuse of discretion standard

       gives the post-conviction court the ability to curtail attempts by petitioners,

       including those in capital cases, to delay final judgment on their petitions. Id.

       Second, abuse of discretion is the well-established standard of review for

       voluntary motions to dismiss in the somewhat rare cases when such motions

       are subject to appeal. Id. We will reverse the post-conviction court’s judgment

       only where it is clearly against the logic and effect of the facts and

       circumstances before the court or the reasonable, probable, and actual
       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 14 of 18
       deductions to be drawn therefrom. Id. at 585. “While prejudice to the non-

       moving party is one indicia of an abuse of discretion, it is not a proxy for the

       post-conviction court’s discretion in the face of plain language in the Rule to the

       contrary.” Id. at 585-586 (footnote omitted).


[28]   The record reveals that Zamarron filed his petition for post-conviction relief

       alleging that his trial counsel and appellate counsel were ineffective on October

       4, 2010. Following the withdrawal of the public defender in March 2011, the

       court rescheduled the hearing to August 2, 2011, and directed the clerk to notify

       Zamarron that he may either hire private counsel or represent himself at the

       hearing. Following Zamarron’s oral request for a continuance, the court

       granted his motion and rescheduled the hearing to August 8, 2012. After the

       hearing, the court gave Zamarron one year to file findings of fact and

       conclusions of law, but Zamarron failed to do so. After an extension to

       December 16, 2013, Zamarron again failed to file proposed findings of fact and

       conclusions of law. After the court extended the deadline to June 12, 2014, and

       then to July 21, 2014, Zamarron failed to file findings of fact and conclusions of

       law. On June 4, 2014, the court granted Zamarron’s motion for a continuance

       in part and ordered him to file proposed findings of fact and conclusions of law

       by July 21, 2015. More than three years and three months after filing his

       petition for post-conviction relief, Zamarron filed a one-page motion to

       withdraw his petition on January 17, 2014, but did not provide any reasons in

       support of the motion. On July 20, 2015, Zamarron filed a motion to withdraw

       his petition for post-conviction relief without prejudice in which he, at least in


       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 15 of 18
       part, appeared to raise the argument that the evidence was insufficient which

       was addressed in his direct appeal. Zamarron’s addendums to his motion to

       withdraw filed on August 10, 2015, and December 11, 2015, appear to indicate

       that he reviewed the record and found additional issues, but we cannot say that

       Zamarron develops a cogent argument on appeal that the assertions raised in

       the addendums require reversal.2


[29]   To the extent that Zamarron represented himself at the evidentiary hearing and

       relies upon this as a basis for relief, we cannot say that this factor weighs in

       favor of concluding that the post-conviction court abused its discretion. See

       Tapia, 753 N.E.2d at 587 (observing that petitioner asserted that he was having

       difficulty developing these claims because of his inexperience in legal matters

       and recognizing that the Court had consistently held that a defendant who

       chooses to exercise his right to proceed pro se must accept the burden and




       2
         On appeal, Zamarron refers to his August 10, 2015 addendum to his motion to withdraw in which he cited
       Hobson v. State, 675 N.E.2d 1090 (Ind. 1996), and asserted that his trial counsel “failed to tender instruction to
       cure or object when trial court erred in permitting jury to return guilty verdict on murder without specifying
       whether conviction was based on murder or felony murder theory.” Appellant’s Appendix at 229. On
       appeal, Zamarron references only this issue and argues that Hobson is identical to his case. In that case,
       although Hobson was not charged with felony murder, the trial court instructed the jury that it could return a
       verdict of guilty on the charge of murder under either a murder or a felony murder theory and provided the
       jury a general murder verdict form. 675 N.E.2d at 1093. The Court observed that the imposition of
       sentences for both felony murder and the underlying felony constitutes double jeopardy, that the general
       verdict form left the Court with no way to determine if Hobson had been convicted of intentional or felony
       murder, and that it was unable to know whether one or both of certain felonies should have been merged into
       a felony murder charge. Id. at 1094. The Court concluded that it could not know whether Hobson was
       sentenced for both felony murder and the underlying felonies and that “[b]y sentencing consecutively on both
       the murder conviction and on the two potential underlying felonies without specifying which murder theory
       was used, the court committed error.” Id. Unlike in Hobson, Zamarron’s December 11, 2015 addendum
       contains an order detailing the jury’s verdicts of guilty for Count I, murder, Count II, murder in the
       perpetration of robbery, and Count III, murder in the perpetration of burglary. Further, the court merged
       Counts II and III into Count I. We cannot say that Hobson is instructive.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016                 Page 16 of 18
       hazards incidental to his position). With respect to Zamarron’s argument that

       the post-conviction court erred by dismissing his petition with prejudice without

       an order to show cause, we observe that the court ordered him to show cause as

       to why his petition should not be dismissed for failure to prosecute on August

       26, 2013, and again on December 20, 2013, and Zamarron did not specifically

       respond to these orders.3 Under the circumstances, we cannot say that the trial

       court abused its discretion by denying Zamarron’s motion to withdraw his

       petition for post-conviction relief or erred in dismissing his petition with

       prejudice.4


                                                        Conclusion

[30]   For the foregoing reasons, we affirm the post-conviction court’s dismissal of

       Zamarron’s petition for post-conviction relief.


[31]   Affirmed.




       3
        In Holliness v. State, 496 N.E.2d 1281, 1282 (Ind. 1986), the Indiana Supreme Court held that “dismissal
       after the Public Defender has made an appearance on behalf of the pro se petitioner and before an amended
       petition has been filed, can be made only after an order to show cause why the petition should not be
       dismissed pursuant to T.R. 41(E).” We cannot say that Holliness warrants reversal in this case as the public
       defender withdrew from the case and the court entered two orders to show cause why Zamarron’s petition
       should not be dismissed.
       4
        We note that Zamarron is not totally barred from filing another petition for post-conviction relief. Post-
       Conviction Rule 1(12) permits defendants to ask this court to authorize the filing of successive petitions if the
       petitioner establishes a reasonable possibility that he is entitled to post-conviction relief. See Tinker v. State,
       805 N.E.2d 1284, 1285, 1290 n.6 (Ind. Ct. App. 2004) (discussing a challenge to the post-conviction court’s
       dismissal of the petitioner’s petition for post-conviction relief with prejudice and noting that the petitioner
       was “not totally barred from filing another petition for post-conviction relief” and citing Post Conviction
       Rule 1(12)), trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016                  Page 17 of 18
Baker, J., and May, J., concur.




Court of Appeals of Indiana | Memorandum Decision 45A03-1601-PC-141 | June 30, 2016   Page 18 of 18
