Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                  Aug 11 2014, 10:31 am
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:

KEVIN L. CURRY                                      GREGORY F. ZOELLER
Michigan City, Indiana                              Attorney General of Indiana

                                                    ANGELA N. SANCHEZ
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

KEVIN L. CURRY,                                     )
                                                    )
        Appellant-Defendant,                        )
                                                    )
                vs.                                 )       No. 20A03-1312-PC-513
                                                    )
STATE OF INDIANA,                                   )
                                                    )
        Appellee-Plaintiff.                         )


                      APPEAL FROM THE ELKHART SUPERIOR COURT
                           The Honorable Stephen R. Bowers, Judge
                                Cause No. 20D02-1204-PC-35


                                          August 11, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Kevin Curry appeals the post-conviction court’s partial denial of his petition for

post-conviction relief. We affirm.

                                            Issue

       Curry raises several issues, which we consolidate and restate as whether he was

denied the effective assistance of trial counsel.

                                            Facts

       Curry created, forged, and cashed checks by using other individuals to present the

checks for cashing as purported payroll checks.       In each instance, after cash was

obtained, Curry split the sum with the presenter of each false check. On July 1, 2009, the

State charged Curry with one count of Class C felony corrupt business influence and

fifteen counts of Class C felony forgery. Curry v. State, No. 20A03-1008-CR-454, slip

op. at 4 (Ind. Ct. App. May 31, 2011), trans. denied.          Attorney Mark Manchak

represented Curry from August 2009 until November 2009, when Curry elected to

proceed pro se. Manchak served as standby counsel from November 23, 2009, through

January 2010. On January 27, 2010, the State filed an amended information, adding a

habitual offender count. Attorney James Stevens entered his appearance for Curry on

February 19, 2010. On June 24, 2010, a jury found Curry guilty on Counts I through

XVI and subsequently found him guilty on the habitual offender count.

       On direct appeal, Curry raised several issues: (1) the denial of his motion for a

directed verdict; (2) the sufficiency of the evidence; (3) the belated amendment of the

charging information to include an habitual offender enhancement; and (4) the

                                              2
appropriateness of his sentence.         We remanded for clarification of his sentence but

affirmed in all other respects. Our supreme court denied transfer.

       In April 2012, Curry filed a petition for post-conviction relief, which he later

amended. He raised three issues: (1) ineffective assistance of trial counsel; (2) ineffective

assistance of appellate counsel; and (3) prosecutorial misconduct. After a hearing, the

post-conviction court denied Curry’s petition except with respect to his ineffective

assistance of appellate counsel argument regarding his habitual offender enhancement.

The post-conviction court ordered a new trial regarding the habitual offender

enhancement. Curry now appeals.1

                                              Analysis

       Curry argues that the post-conviction court erred by partially denying his petition.

A court that hears a post-conviction claim must make findings of fact and conclusions of

law on all issues presented in the petition. Pruitt v. State, 903 N.E.2d 899, 905 (Ind.

2009) (citing Ind. Post-conviction Rule 1(6)). “The findings must be supported by facts

and the conclusions must be supported by the law.” Id. Our review on appeal is limited

to these findings and conclusions. Id. Because the petitioner bears the burden of proof in

the post-conviction court, an unsuccessful petitioner appeals from a negative judgment.

Id. (citing P-C.R. 1(5)). “A petitioner appealing from a negative judgment must show

that the evidence as a whole ‘leads unerringly and unmistakably to a conclusion opposite



1
  Curry has placed several documents in his Appendix that were excluded by the post-conviction court.
Because those documents were excluded, we will not consider them in our review of Curry’s arguments.
See Herron v. State, 808 N.E.2d 172, 178 (Ind. Ct. App. 2004) (striking documents that were not part of
the trial record), trans. denied.
                                                  3
to that reached by the trial court.’” Id. (quoting Allen v. State, 749 N.E.2d 1158, 1164

(Ind. 2001), cert. denied). Under this standard of review, “[we] will disturb a post-

conviction court’s decision as being contrary to law only where the evidence is without

conflict and leads to but one conclusion, and the post-conviction court has reached the

opposite conclusion.” Id.

       On appeal, Curry argues only that his trial counsel was ineffective. To prevail on

a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his or

her counsel’s performance was deficient and that the petitioner was prejudiced by the

deficient performance. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)), cert. denied.

A counsel’s performance is deficient if it falls below an objective standard of

reasonableness based on prevailing professional norms. French v. State, 778 N.E.2d 816,

824 (Ind. 2002). To meet the appropriate test for prejudice, the petitioner must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. Id. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.

Ct. at 2068. Failure to satisfy either prong will cause the claim to fail. Grinstead v. State,

845 N.E.2d 1027, 1031 (Ind. 2006). Most ineffective assistance of counsel claims can be

resolved by a prejudice inquiry alone. Id.

                            A. Failure to Enforce Agreement

       Curry argues that his trial counsel was ineffective for failing to enforce a

purported agreement between Curry and the police. According to Curry, if he paid

                                              4
restitution for two checks, the police agreed that no charges would be filed. The post-

conviction court rejected Curry’s argument and found:

               7.       Petitioner alleges that with respect to two (2) checks
                        that were passed at Martin’s Supermarket, he paid
                        restitution based on some “agreement” with Elkhart
                        Police Department officers that criminal charges
                        would not be filed against him. Petitioner states that
                        this constituted a plea agreement between himself and
                        the State requiring specific enforcement and vacation
                        of conviction(s) arising from those checks being
                        passed.

               8.       Petitioner did not submit any documentary evidence of
                        a plea agreement. The Court does not find the
                        Petitioner’s oral testimony as to the alleged plea
                        agreement credible. At most, he persuades the Court
                        that the State indicated to the victim that Curry could
                        make direct restitution.

               9.       Petitioner cites Bowers v. State, 500 N.E.2d 203 (Ind.
                        1986), in support of his argument regarding failure of
                        the State to honor a plea agreement. However, this
                        case is distinguishable, as Curry never had any
                        agreement with the State DPA. With respect to “Plea
                        Bargain Enforcement,” Petitioner alleges no
                        meritorious claim for which he is entitled to relief.

Order pp. 8-9.2

        On appeal, Curry cites no evidence that the State promised not to prosecute him if

the victims were repaid. Curry cites only the full transcript of his trial and Exhibits 7(b)

and 7(e), which the post-conviction court excluded at the post-conviction hearing. Curry

has simply failed to prove that such an agreement ever existed.



2
  The post-conviction court’s order was included in Curry’s Appellant’s Brief, but it was not included in
the Appendix.
                                                   5
      Moreover, Curry cites no authority that the prosecutor would be bound by such an

agreement between Curry and the police. “It is well-settled that the decision whether or

not to prosecute lies within the prosecutor’s discretion so long as the prosecutor has

probable cause to believe that the accused has committed the offense.” Bowers v. State,

500 N.E.2d 203, 204 (Ind. 1986). “The determination as to who shall be prosecuted and

who shall not be prosecuted lies within the sole discretion of the prosecuting attorney.”

Lamotte v. State, 495 N.E.2d 729, 733 (Ind. 1986). Curry has failed to demonstrate that

his trial counsel’s performance was deficient because he did not attempt to enforce the

purported agreement.

                            B. Failure to Introduce Videos

      Curry argues that his trial counsel was ineffective for failing to introduce certain

videos into evidence at the trial. The post-conviction court found that Curry “failed to

present any credible evidence in support of these claims.”        Order p. 9.   The post-

conviction court found that Curry failed to show that his attorney’s performance was

deficient or that he was prejudiced by the alleged performance.

      On appeal, Curry argues that the “vital video recordings hold direct evidence of

police misconduct and perjury statements that could have been introduced at trial as a

means of impeachment.” Appellant’s Br. p. 12. Curry does not identify the video

recordings at issue, although he later mentions a “failed opportunity” to impeach

witnesses Kim Kie and Carla Thomas. Id. Curry simply failed to provide any evidence

to support this claim. The video recordings were excluded at the post-conviction hearing,



                                            6
and Curry makes no argument that those videos should have been admitted. Curry has

failed to demonstrate that his trial counsel was ineffective with respect to those videos.

                           C. Failure to Introduce Defense Witnesses

        Curry argues that Attorney Stevens’s performance during the trial was ineffective.

The post-conviction court found that Curry “failed to present any credible evidence in

support of these allegations.” Order p. 9. On appeal, Curry argues that Stevens failed to

call defense witnesses and investigate.3 Curry points out that Stevens died a few months

after the trial of cancer and implies that Stevens’s health must have impaired his

performance at the trial.

        Curry presented no evidence that Stevens’s health affected his performance at the

trial. Curry’s speculation is insufficient to establish his ineffective assistance of counsel

claim. As for Stevens’s failure to call witnesses, Curry identifies Rowena Gutierrez,

Dannell Brown, Rachel Koontz, Tracy Curry, and Thurman Curry as witnesses that

should have been called. Curry was required to demonstrate what those witnesses would

have testified to and how he was prejudiced by the failure to call the witnesses. Of those,

only Gutierrez testified at the post-conviction hearing. She testified only that she was a

licensed practical nurse and had worked with cancer patients. There was no evidence




3
  Curry argues that Stevens was ineffective for failing to enforce the “contract agreement,” failing “to
introduce video recording evidence,” and failing to “object and show prejudice to an untimely filed
habitual.” Appellant’s Br. p. 14. We have addressed these arguments in the other issues. Curry also
briefly argues that Stevens was ineffective for failing to give an opening statement. We note that
“counsel’s choices related to opening or closing argument . . . are strategic calls that will rarely support a
Sixth Amendment violation.” Woods v. State, 701 N.E.2d 1208, 1226 (Ind. 1998), cert. denied. Curry’s
argument fails.
                                                      7
presented concerning what those witnesses would have testified to at the trial. 4 Curry has

failed to demonstrate that Stevens’s performance was deficient due to his failure to call

witnesses at the trial or that he was prejudiced by the alleged deficiency. The post-

conviction court properly denied the petition for post-conviction relief on this issue.

                      D. Improper Advice Regarding Plea Agreement

         Curry argues that Attorney Manchak was ineffective because he gave Curry

improper advice concerning sentencing that resulted in Curry rejecting a favorable plea

agreement. Manchak represented Curry from August 2009 until November 2009, when

Curry elected to proceed pro se. Manchak served as standby counsel from November 23,

2009, through January 2010. Manchak testified that he did not give Curry any legal

advice regarding the plea offer because he was acting as standby counsel at that time.

         “A defendant who proceeds pro se . . . must accept the burdens and hazards of

self-representation.” Carter v. State, 512 N.E.2d 158, 162 (Ind. 1987). “He may not

assert a Sixth Amendment claim of ineffective assistance of counsel because he, in effect,

would be alleging himself ineffective.” Id. Additionally, he may not assert an ineffective

assistance of counsel claim against a standby counsel. See id. at 163-64. Consequently,

Curry’s claim with respect to Manchak while Manchak was serving as standby counsel

fails.

            E. Failure to Object to Timing of Habitual Offender Enhancement




4
 Curry attempted to enter some affidavits into evidence, but the post-conviction court excluded them.
Curry makes no argument that the affidavits were improperly excluded.
                                                 8
       Next, Curry argues that his trial counsel was ineffective for failing to object to the

late filing of an habitual offender enhancement. At the time of Curry’s trial, Indiana

Code Section 35-34-1-5(e) provided: 5

               An amendment of an indictment or information to include a
               habitual offender charge . . . must be made not later than ten
               (10) days after the omnibus date. However, upon a showing
               of good cause, the court may permit the filing of a habitual
               offender charge at any time before the commencement of the
               trial.

The omnibus date here was September 21, 2009, and the State filed the habitual offender

enhancement on January 27, 2010.            At that time, Curry was representing himself.

Attorney Stevens entered his appearance for Curry on February 19, 2010.

       Again, because Curry was representing himself at the time the belated habitual

offender enhancement was filed, he cannot assert an ineffective assistance of counsel

claim. See Carter, 512 N.E.2d at 162. To the extent that he argues that Stevens should

have objected to the filing after Stevens filed his appearance, Curry makes no argument

that such an objection would have been sustained.              He appears to argue that plea

negotiations were not occurring during that time, but we note that evidence was presented

at the post-conviction hearing that plea negotiations were, in fact, happening during the

time period leading up to the filing of the habitual offender enhancement. We have held

that good cause may be shown for a delay in filing an habitual offender enhancement due

to plea negotiations. See Johnican v. State, 804 N.E.2d 211, 215 (Ind. Ct. App. 2004).



5
 This statute was later amended by Pub. L. No. 24-2013, § 1 (eff. July 1, 2013) and Pub. L. No. 158-
2013, § 389 (eff. July 1, 2014).
                                                 9
Curry has failed to demonstrate that an objection to the late filing of the habitual offender

enhancement would have been sustained.

       Moreover, in Curry’s direct appeal, he argued that the trial court erred by allowing

the belated filing of the habitual offender enhancement. We rejected Curry’s argument

and concluded that “Curry failed to establish that the amendment prejudiced him in the

preparation and presentation of his defense.” Curry, slip op. at 12. In his post-conviction

appeal, Curry makes no argument that he was prejudiced by his trial counsel’s failure to

object to the belated filing. Given the holding on direct appeal of no prejudice from the

belated amendment, Curry cannot show that he was prejudiced by his trial counsel’s

failure to challenge the belated amendment. Consequently, Curry’s ineffective assistance

of counsel claim on this issue fails.

                                        Conclusion

       Curry’s claims of ineffective assistance of counsel fail. The post-conviction court

properly denied Curry’s petition for post-conviction relief on these issues. We affirm.

       Affirmed.

BAKER, J., and CRONE, J., concur.




                                             10
