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                                 Oct 18 2013, 5:35 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


APPELLANT PRO SE:                                           ATTORNEYS FOR APPELLEE:

LOUIS O’NEAL                                                GREGORY F. ZOELLER
Michigan City, Indiana                                      Attorney General of Indiana

                                                            MONIKA PREKOPA TALBOT
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

LOUIS O’NEAL,                                       )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )   No. 20A03-1302-PC-58
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                      APPEAL FROM THE ELKHART CIRCUIT COURT
                          The Honorable Terry C. Shewmaker, Judge
                               Cause No. 20C01-0608-FA-64


                                         October 18, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

        Pro-se petitioner Louis O’Neal (“O’Neal”) appeals the denial of his motion to

withdraw his post-conviction petition, without prejudice. He presents the sole issue of

whether the post-conviction court abused its discretion by refusing to allow the withdrawal.1

We affirm.

                                    Facts and Procedural History

        On March 27, 2008, O’Neal pled guilty to Possession of Cocaine, Dealing in Cocaine,

Unlawful Possession of a Handgun by a Serious Violent Felon, and Possession of Marijuana

with Intent to Deliver. He was sentenced to an aggregate term of forty years imprisonment.

O’Neal appealed his sentence. On March 9, 2009, the sentence was affirmed. O’Neal v.

State, 20A03-0810-CR-486 (Ind. Ct. App. 2009), trans. denied.

        On June 15, 2010, O’Neal filed a pro-se petition for post-conviction relief. He was

appointed a public defender. On June 9, 2011, the State Public Defender filed a notice of

withdrawal of appearance and certification pursuant to Indiana Post-Conviction Rule 1(9)(c).

On July 18, 2011, O’Neal filed a pro-se motion to dismiss, directed toward vacating the

underlying charge and conviction.

        On September 1, 2011, a hearing was conducted, at which the post-conviction court

addressed a “Motion to Dismiss pending relating to the absence of a “PC” cause number.”

(App. 9.) The post-conviction stated that it “dismissed” the motion to dismiss, without

prejudice. (Tr. 11, 22.) O’Neal advised the court that “he is unprepared to proceed [on] this

1
 The State, in its appellee’s brief, articulates a second issue and addresses the propriety of the denial of
post-conviction relief on the merits. However, O’Neal did not raise this as an issue for appellate review.

                                                      2
date on his PCR Petition” and the hearing was continued at his request so that he could

obtain counsel. (App. 9.) On December 9, 2011, O’Neal filed a motion for change of venue

from the judge, and the post-conviction court set the matter for hearing.

        On May 31, 2012, a hearing was conducted at which O’Neal appeared pro-se and filed

a motion to withdraw his petition for post-conviction relief, without prejudice.2 He advised

the post-conviction court that his mother had obtained counsel to represent him, although

O’Neal had not yet met his counsel. O’Neal was informed that if no counsel filed a written

appearance by June 28, 2012, the pending matters would be heard on November 29, 2012.

        As of June 28, 2012, no attorney had filed an appearance on O’Neal’s behalf. On

November 29, 2012, the post-conviction court conducted a hearing on O’Neal’s motion to

withdraw his petition, motion for change of judge, and petition for post-conviction relief.

O’Neal was denied leave to withdraw his petition.                    He presented no witnesses or

documentary evidence. On January 28, 2013, the post-conviction court entered an order

denying O’Neal post-conviction relief. This appeal ensued.

                                      Discussion and Decision

        O’Neal argues that he had a right to withdraw his petition for post-conviction relief,

without prejudice, because the State would have suffered no prejudice from withdrawal. He

also emphasizes that the post-conviction court apparently believed, in error, that O’Neal had

been afforded a prior withdrawal of a petition for post-conviction relief.

2
 The Chronological Case Summary for that date includes the notation: “The Court notes the Deft has
previously w/drawn a PCR Petition at the suggestion of the State PD and agreed to by Deft.” (App. 10.)
The notation appears to erroneously refer to the dismissal of a pro-se motion to dismiss the underlying
criminal charges (asserting as grounds for relief the absence of a post-conviction cause number) as if it
were a motion for dismissal of a petition for post-conviction relief.

                                                     3
       Indiana Post-Conviction Rule 1(4)(c) provides in relevant part: “At any time prior to

entry of judgment the court may grant leave to withdraw the petition.” We will overturn a

post-conviction court’s grant or denial of a motion to withdraw a petition only when the court

reached an erroneous conclusion and judgment, one clearly against the logic and effect of the

facts and circumstances before the court or the reasonable inferences to be drawn therefrom.

Thomas v. State, 965 N.E.2d 70, 74-75 (Ind. Ct. App. 2012), trans. denied.

       The task of the post-conviction court is to balance the benefit a petitioner would

derive from a delay against the costs to the court in wasted time. See Tapia v. State, 753

N.E.2d 581, 586 (Ind. 2001). While prejudice to the non-moving party is one relevant

indicator, ‘“it is not a proxy for the post-conviction Court’s discretion.”’ Tucker v. State, 786

N.E.2d 710, 712 (Ind. 2003) (quoting Tapia, 753 N.E.2d at 585-86).

       Here, there was apparent confusion about O’Neal’s prior motion to dismiss filed after

the initiation of post-conviction proceedings. During the November 29, 2012 hearing, the

post-conviction court observed: “You previously withdrew a post-conviction relief petition

at the suggestion of the State PD.” (Tr. 28.) However, this appears to be an erroneous

observation. At the May 31, 2012 hearing, O’Neal orally and in writing moved to withdraw

his petition for post-conviction relief without prejudice, but the post-conviction court did not

rule on the motion.

       The post-conviction court had previously ruled on a motion to dismiss filed by

O’Neal, albeit one that did not seek to withdraw his petition for post-conviction relief.

O’Neal’s motion to dismiss, although filed in post-conviction proceedings, was brought


                                               4
pursuant to Indiana Code section 35-34-1-4(a)(11), which provides for dismissal of an

indictment or information under some circumstances. Apparently, O’Neal had come to

believe that his post-conviction petition had not been assigned a post-conviction cause

number and thus he was entitled to have the original charge and conviction vacated. The

post-conviction court advised O’Neal of his post-conviction cause number and dismissed the

motion. Although the post-conviction court later made reference to a prior motion to

dismiss, it was in actuality not a motion to dismiss a petition for post-conviction relief but

was – strictly speaking – a post-conviction motion seeking dismissal of a charge that had

already resulted in conviction. O’Neal suggests that the misapprehension automatically

entitles him to relief. We disagree.

       Approximately two and one-half years after the filing of his petition for post-

conviction relief, O’Neal had no witnesses or documentary evidence to produce at the post-

conviction hearing. More importantly, he did not advise the post-conviction court what

might be gained from further delay if his motion to withdraw were to be granted.

       Having pled guilty, O’Neal was confined to strict parameters in asserting his

entitlement to post-conviction relief. A post-conviction claim challenging a conviction

pursuant to a guilty plea is examined under Segura v. State, 749 N.E.2d 496 (Ind. 2001).

Segura categorizes two main types of ineffective assistance of counsel cases: (1) failure to

advise the defendant on an issue that impairs or overlooks a defense, and (2) an incorrect

advisement of penal consequences. Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). In

order to set aside a conviction because of an attorney’s failure to raise a defense, a petitioner


                                               5
who has pled guilty must establish that there is a reasonable probability that he or she would

not have been convicted had he or she gone to trial and used the omitted defense. Segura,

749 N.E.2d at 499 (citing State v. Van Cleave, 674 N.E.2d 1293, 1306 (Ind. 1996)).

        In his petition for post-conviction relief, O’Neal claimed that his counsel was

ineffective for failing to conduct a professional investigation, interview witnesses, and

subject the prosecution’s case to meaningful adversarial testing. According to O’Neal’s

petition, “conviction would have been impossible without the testimony of felon witnesses.”

(App. 21.) However, O’Neal pled guilty after advisement that he would be giving up his

right to a trial and his right to call witnesses on his behalf. A plea of guilty constitutes a

waiver of the right to trial.        Gosnell v. State, 439 N.E.2d 1153, 1155 (Ind. 1982).

Accordingly, O’Neal’s decision to plead guilty foreclosed counsel’s ability to continue with

trial preparations, develop a defense, or challenge witnesses.

        He claimed, in his post-conviction petition, that counsel failed to object to a sentence

as “erroneous, contrary to law, and in violation of Due Process and Due Course of Law of the

United States and Indiana Constitution.” (App. 29.) However, O’Neal challenged his

sentence on direct appeal and thus his opportunity to continue to challenge the sentence, or

allege his counsel’s ineffectiveness related to the sentence, was foreclosed. See Stephenson

v. State, 864 N.E.2d 1022, 1028 (Ind. 2007) (observing, if an issue was raised and decided on

direct appeal, it is res judicata).3 A delay would have provided no assistance to O’Neal in



3
 Post-conviction procedures do not afford petitioners with a “super-appeal”; rather, the post-conviction
rules contemplate a narrow remedy for subsequent collateral challenges to convictions. Reed v. State, 856
N.E.2d 1189, 1194 (Ind. 2006). The purpose of a petition for post-conviction relief is to provide

                                                    6
this regard.

        O’Neal asserted that he is “actually innocent of murder” and DNA testing may

exonerate him. (App. 44.) However, he was convicted of drug-related charges. He

additionally claimed that he was incompetent to stand trial and the trial court should have

undertaken greater efforts to discover his incompetence. Nevertheless, the record indicates

that trial counsel filed a motion to determine O’Neal’s competency; on November 13, 2006,

the motion was granted. Based upon reports from Dr. Salvador Cenciceros and Dr. Carl N.

Rutt, the trial court found O’Neal competent to stand trial. Moreover, to the extent that

O’Neal attempted to raise freestanding fundamental error claims, such claims are not

reviewable in a post-conviction proceeding. Sanders v. State, 765 N.E.2d 591, 592 (Ind.

2002). In sum, there is no indication of record that an additional delay would have been

beneficial to O’Neal in developing his bald assertions.

        The State had appeared at hearings prepared to litigate the merits of the post-

conviction petition. O’Neal had then represented to the post-conviction court that he had

obtained counsel or alternately intended to procure counsel. No counsel entered an

appearance, and O’Neal requested successive appointed counsel. Upon denial of that

request, O’Neal insisted that he was unable to proceed pro-se: “I’m not versed to help myself

at this time.” (Tr. 33.) Any benefit that he could expect from a delay was highly speculative.


petitioners the opportunity to raise issues not known or available at the time of the original trial or direct
appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). If an issue was known and available but
not raised on direct appeal, the issue is procedurally foreclosed. Id. If an issue was raised and decided on
direct appeal, it is res judicata. Id. Moreover, collateral challenges to convictions must be based upon
grounds enumerated in the post-conviction rule. Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App.
2006), trans. denied; see also Post-Conviction Rule 1(1).

                                                      7
The post-conviction court could properly balance a specious benefit against a waste of

judicial resources. See Tapia, 753 N.E.2d at 586 (holding that Tapia was not entitled to

withdraw his petition “without any valid explanation as to what would be gained from further

delay”). It was not an abuse of the post-conviction court’s discretion to refuse to allow

O’Neal to withdraw his petition for post-conviction relief.

       Affirmed.

MAY, J., and BRADFORD, J., concur.




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