MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Feb 21 2017, 10:15 am
court except for the purpose of establishing
                                                                        CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian Eldridge,                                          February 21, 2017
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         02A03-1609-PC-2045
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Respondent.                                     Jr., Judge
                                                         Trial Court Cause Nos.
                                                         02D06-1509-PC-109
                                                         02D04-0304-FA-23



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017    Page 1 of 19
[1]   Brian Eldridge appeals the denial of his petition for post-conviction relief.

      Eldridge raises two issues which we revise and restate as:


            I.    Whether Eldridge was deprived of a procedurally fair post-conviction
                  hearing; and

           II.    Whether he was denied the effective assistance of trial counsel.

      We affirm.


                                      Facts and Procedural History

[2]   In February 2003, the State charged Eldridge under cause number 02D04-0302-

      FA-11 (“Cause No. 11”) with: Count I, criminal deviate conduct as a class A

      felony; Count II, criminal deviate conduct as a class A felony; Count III, sexual

      battery as a class C felony; Count IV, sexual battery as a class C felony; Count

      V, sexual battery as a class C felony; Count VI, possession of legend drug or

      precursor as a class D felony; and Count VII, possession of legend drug or

      precursor as a class D felony. On April 14, 2003, the State charged Eldridge

      under cause number 02D04-0304-FA-21 (“Cause No. 21”) with rape as a class

      A felony and sexual battery as a class C felony. That same day, the State

      charged Eldridge under cause number 02D04-0304-FA-23 (“Cause No. 23”)

      with two counts of criminal deviate conduct as class A felonies and sexual

      battery as a class C felony.


[3]   On September 26, 2003, Eldridge and the State entered into a plea agreement

      pursuant to which he agreed to plead guilty to criminal deviate conduct as a

      class A felony under Cause No. 11, rape as a class A felony under Cause No.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 2 of 19
      21, and criminal deviate conduct as a class A felony under Cause No. 23. The

      agreement further provided that the State would dismiss the remaining charges

      at sentencing and that the trial court would have “the final and full authority to

      impose the sentence it deems proper.” Direct Appeal Appendix at 40(A). The

      agreement was signed by Eldridge and his attorney and stated:

              I, Brian S. Eldridge, represent that I am the defendant and that I
              have read this plea agreement or I have had my attorney read it
              to me. I represent that I understand the plea agreement and
              accept same voluntarily and without force, threat or other
              promises from anyone (other than the plea agreement).


              I further understand that I have a right to a speedy, public trial by
              court or by jury in the county in which the offense allegedly
              occurred; I have a right to require witnesses to be present at any
              hearing or at the trial for the purpose of testifying on my behalf
              and at my request subpoenas will be issued by the court requiring
              witnesses to appear for me; and, I have a right to remain silent
              and that I cannot be required to give any testimony or make any
              statement against myself to anyone. I understand that this plea
              of guilty waives (gives up) the aforesaid rights.


              All of which I hereby affirm under the penalties of perjury.


      Id. at 40(C).


[4]   On September 26, 2003, the court held a hearing. The court asked Eldridge if

      he wished to plead guilty to criminal deviate conduct as a class A felony under

      Cause No. 11, rape as a class A felony under Cause No. 21, and criminal

      deviate conduct as a class A felony under Cause No. 23, and he answered

      affirmatively. Eldridge indicated that he had never been treated for any mental
      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 3 of 19
      illness and did not suffer from any mental or emotional disability and was not

      under the influence of alcohol or drugs. The court informed Eldridge of his

      right to a speedy trial by a jury, the right to face all witnesses and question and

      cross-examine them, the right to require witnesses to be present, the right not to

      be compelled to make any statement, and the right to appeal his conviction if he

      went to trial and was found guilty. The court read the charges, and Eldridge

      indicated that he understood them. Eldridge indicated that he understood that

      by pleading guilty he would be admitting that he committed the crimes charged

      and that he would be found guilty and sentenced without a trial. Eldridge also

      indicated that he understood the possible sentences and that the court would

      decide whether the terms would be served concurrently or consecutively.

      Eldridge indicated that he signed the plea agreement, read it, discussed it with

      his counsel, his plea of guilty was his own free and voluntary act, and he was

      satisfied with his attorney. Eldridge then pled guilty pursuant to the plea

      agreement.


[5]   Eldridge indicated that he administered a drug to L.M. without her knowledge

      and placed his finger in her vagina, that he administered a legend drug to J.P.

      without her knowledge and had sexual intercourse with her, and that he gave

      T.T. a drug without her knowledge and placed his finger in her vagina. The

      court stated: “I’ll take the matter under advisement, refer the matter for pre-

      sentence investigation report.” Direct Appeal Transcript at 17. The court

      scheduled a sentencing hearing for October 27, 2003. The prosecutor moved to

      submit a videotape of the incidents if the court wished to view them. Eldridge’s


      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 4 of 19
      counsel objected, stated that a factual basis had been established, and stated: “I

      mean, that’s part of what we’re doing here, trying to avoid a [sic] protracted

      proceedings when it’s clear to everyone what happened.” Id. at 18. The court

      suggested noting the recording as an exhibit on the issue of factual basis, and

      Eldridge’s counsel did not object “in so far as it’s for the use of the court . . . .”

      Id.


[6]   On October 27, 2003, the court held a sentencing hearing. Eldridge indicated

      that the presentence investigation report was correct. Eldridge’s parents and

      uncle testified. Eldridge’s counsel argued that Eldridge expressed a great deal

      of remorse and asked the court to sentence him to the minimum sentence of

      twenty years. Eldridge stated that he did not want his daughter watching the

      tapes, that he wanted to do right for his child, and that he respects the law. He

      also stated:

              And I thank [the prosecutor] for at least, you know, coming up
              with the least of three charges that he did come up with. You
              know, they’re not to my liking because I would have pled guilty
              to all the five sexual batteries. But the criminal deviate conduct,
              man, I wasn’t trying to hurt no one. I mean, that’s all I can say
              dude, I mean, I wasn’t trying to hurt anybody, I wasn’t definitely
              trying to be back in this orange and jail. And the most thing I
              dislike is the fact that I hurt my friends. Because no one, no one
              was supposed to see the tape, and I was in the process of
              destroying it. But I decided to confess to this girl that I wanted,
              you know, that I had took pictures of her friend, and to go back
              and tell her because she was my friend too. Go back and tell her
              that I took pictures and then maybe it will ease the blow. But the
              bottom dropped out and here I am.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 5 of 19
      Sentencing Transcript at 24-25. After Eldridge’s statement, his counsel

      submitted the following mitigating circumstances: his employment at the time

      of the offenses, his family support, his guilty plea, he turned himself in after he

      was confronted, his acceptance of responsibility, and long incarceration would

      work a hardship on his relationship with his daughter and his family

      responsibilities.


[7]   The court indicated that it had not viewed the tape but that it was admitting the

      tape under seal only and that the only purpose of its admission was “to

      corroborate the plea of guilty should that ever become an issue.” Id. at 27. The

      court found Eldridge’s guilty plea and acceptance of responsibility as a

      mitigating factor. The court found Eldridge’s criminal history and the nature of

      the offenses further compounded by “what must be humiliation in the filming

      of these terrible acts” as aggravators. Id. at 28. The court sentenced Eldridge to

      thirty years for each count to be served consecutive with each other for an

      aggregate sentence of ninety years. The court dismissed the remaining counts.


[8]   On direct appeal, Eldridge argued that his sentence was inappropriate, and this

      court affirmed. Eldridge v. State, No. 02A04-0401-CR-48, slip op. at 2 (Ind. Ct.

      App. June 16, 2004).


[9]   On July 6, 2005, Eldridge filed a pro se petition for post-conviction relief. 1 On

      August 8, 2005, a public defender filed a written appearance and notice of



      1
          The record does not contain a copy of this petition.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 6 of 19
       inability to investigate. In December 2008, the public defender filed a notice of

       withdrawal.


[10]   On September 30, 2015, Eldridge filed a pro se petition for post-conviction

       relief. 2 Eldridge alleged in part that his trial counsel was ineffective for failing

       to object to his being sentenced without the court accepting his guilty plea. On

       December 15, 2015, a public defender filed a notice of non-representation.


[11]   On December 23, 2015, the State filed a motion to require Eldridge to submit

       his case by affidavit. That same day, the court entered an order granting the

       State’s motion, granting Eldridge until April 4, 2016, to submit his case by

       affidavit, granting the State until June 6, 2016, to file a response, and ordering

       that the parties submit proposed findings of fact and conclusions of law on or

       before August 8, 2016. The court’s order states in part:

                  [Eldridge] shall promptly notify the court if he wishes to engage
                  counsel to represent him in this matter.


                  THE PETITION FOR POST-CONVICTION RELIEF MAY
                  BE DISMISSED if [Eldridge] does not (1) submit his case for
                  post-conviction relief by affidavit, (2) submit a written request for
                  additional time in which to submit his case by affidavit, or (3)
                  notify the court that he wishes to engage counsel to represent
                  him, ON OR BEFORE THE DATE SPECIFIED ABOVE FOR
                  SUBMITTING HIS CASE BY AFFIDAVIT.




       2
           Eldridge alleged that his earlier petition for post-conviction relief was withdrawn without prejudice.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017              Page 7 of 19
       Appellant’s Appendix at 46.


[12]   On April 11, 2016, Eldridge filed his own affidavit in support of his petition

       asserting that his sentence was illegal and must be vacated because the trial

       court did not accept his guilty plea. On June 6, 2016, the State filed a response

       to Eldridge’s affidavit.


[13]   On June 20, 2016, Eldridge filed a pro se motion to compel interrogatories for

       his trial counsel alleging that he served an interrogatory on his trial counsel on

       March 8, 2016, requesting him to answer the questions within thirty days and

       his trial counsel had not answered the interrogatory. On June 24, 2016, the

       court denied Eldridge’s motion to compel interrogatories.


[14]   On August 5, 2016, an attorney filed an appearance for Eldridge. That same

       day, Eldridge by counsel filed a verified motion to continue the post-conviction

       action and argued that Post-Conviction Rule 1(9)(b) allowed the court to

       require a pro se petitioner to submit the case by affidavit, but Eldridge was no

       longer a pro se petitioner. Eldridge’s counsel also alleged that she would need to

       conduct a complete investigation, review all records, conduct discovery, and

       meet with Eldridge. She also alleged that “[d]ue to counsel’s case load, it will

       be at least a year before counsel is ready to litigate this case” and requested that

       the court vacate the order requiring Eldridge to submit his case by affidavit and

       continue the matter until counsel notified the court that she is ready to proceed.

       Id. at 85. The court denied the motion.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 8 of 19
[15]   On August 8, 2016, Eldridge filed proposed findings of fact and conclusions of

       law. 3 That same day, the court denied Eldridge’s petition. The post-conviction

       court’s order found that Eldridge was correct in stating that the trial court did

       not explicitly accept his guilty plea and states:

               2. No Indiana decision appears to have precisely addressed the
               question whether a court implicitly accepts a defendant’s guilty
               plea when, without explicitly accepting the plea, it accepts the
               plea as a mitigating factor and proceeds to sentence the defendant
               in accordance with the plea. The Court of Appeals has held that
               a court does implicitly accept a plea agreement when it accepts a
               guilty plea entered pursuant to the agreement. Rogers v. State, 715
               N.E.2d 428, 429 (Ind. Ct. App. 1999). More generally,
               numerous decisions have addressed implicit acceptance of
               various matters, and have held that implicit acceptance may be
               inferred from conduct consistent with acceptance but inconsistent with
               non-acceptance. See, e.g., Northern Indiana Public Service Co. v.
               Bloom, 847 N.E.2d 175, 180 (Ind. 2006) (Court of Appeals’
               issuance of opinion on the merits constituted implicit acceptance
               of discretionary interlocutory appeal); Parrish v. Toth, 559 N.E.2d
               369, 370-371 (Ind. Ct. App. 1990) (trial court implicitly accepted
               civil defendant’s amended answer, asserting affirmative defense
               of right of set-off, by allowing defendant to present evidence
               regarding that defense during presentation of damages evidence);
               Laux v. State, 821 N.E.2d 816, 820 (Ind. 2005) (Indiana Supreme
               Court “implicitly accepted that sentencing aggravators do not
               constitute double jeopardy violations” by letting stand both a
               death sentence and a conviction and sentence for robbery that
               was used as an aggravator in sentencing under death penalty
               statute); Ringo v. State, 736 N.E.2d 1209, 1211-1212 (Ind. 2000)




       3
         Eldridge’s document states: “COMES NOW Petitioner, Brian Eldridge, by pro se representation, and
       tenders his Proposed Findings of Fact and Conclusions of Law . . . .” Appellant’s Appendix at 87.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017    Page 9 of 19
        (waiver of Miranda rights occurs when the defendant, after being
        advised of those rights and acknowledging that he understands
        them, proceeds to make a statement without taking advantage of
        those rights, even if defendant has not explicitly waived rights);
        Hierlmeier v. North Judson-San Pierre Bd. of School Trustees, 730
        N.E.2d 821, 824 (Ind. Ct. App. 2000) (teacher, alleged to have
        engaged in inappropriate behavior, implicitly accepted future
        date for school board’s consideration of cancellation of his
        contract by failing to object to future date and to request
        immediate vote at conclusion of hearing). No known decision is
        to the contrary. From the principle underlying these decisions, it
        logically follows that this Court implicitly accepted Mr.
        Eldridge’s guilty plea when it noted the plea as a mitigating
        factor, dismissed nine (9) counts pursuant to the plea agreement,
        and proceeded to sentence him in accordance with the plea.


        3. Furthermore, even if the Court’s act of sentencing Mr.
        Eldridge in accordance with his guilty plea had not constituted
        implicit acceptance of the plea, [Eldridge’s trial counsel] could
        not have affected the ultimate outcome of the proceeding by
        objecting. Had [trial counsel] timely objected at sentencing that
        the Court had not yet accepted the plea, the Court could easily
        have corrected the claimed error by accepting the plea before
        proceeding to sentence Mr. Eldridge. In no event could the
        Court’s technical error (if any), in not explicitly accepting the
        guilty plea, entitle Mr. Eldridge to an undeserved windfall in the
        form of vacation of the guilty plea, because the remedy for an
        error must not be more severe than necessary to correct the error.
        See, e.g., Randolph v. State, 755 N.E.2d 572, 575 (Ind. 2001).
        Counsel will not be found ineffective for failing to raise an
        objection that would not have affected the outcome of the
        proceeding. See Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006)
        (claim of ineffective assistance will not succeed without showing
        of reasonable probability that outcome of proceeding was
        affected by counsel’s claimed errors).



Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 10 of 19
               4. [Eldridge] has failed to prove his claim on the merits by a
               preponderance of the evidence.


       Id. at 96-98.


                                                    Discussion

[16]   Before discussing Eldridge’s allegations of error, we note the general standard

       under which we review a post-conviction court’s denial of a petition for post-

       conviction relief. The petitioner in a post-conviction proceeding bears the

       burden of establishing grounds for relief by a preponderance of the evidence.

       Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5).

       When appealing from the denial of post-conviction relief, the petitioner stands

       in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d

       at 679. On review, we will not reverse the judgment unless the evidence as a

       whole unerringly and unmistakably leads to a conclusion opposite that reached

       by the post-conviction court. Id. Further, the post-conviction court in this case

       entered findings of fact and conclusions thereon in accordance with Indiana

       Post-Conviction Rule 1(6). “A post-conviction court’s findings and judgment

       will be reversed only upon a showing of clear error – that which leaves us with

       a definite and firm conviction that a mistake has been made.” Id. In this

       review, we accept findings of fact unless clearly erroneous, but we accord no

       deference to conclusions of law. Id. The post-conviction court is the sole judge

       of the weight of the evidence and the credibility of witnesses. Id.


                                                          I.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 11 of 19
[17]   The first issue is whether Eldridge was deprived of a procedurally fair post-

       conviction hearing. Eldridge argues that he was deprived of his right to a

       procedurally fair determination of his claims when the post-conviction court

       denied his request to compel his trial and appellate counsel to respond to

       interrogatories, required him to submit the case by affidavit, and refused to

       grant a continuance to give his post-conviction counsel adequate time to consult

       with him, review the record, and amend the petition if necessary. He

       acknowledges that the civil discovery rules do not permit a party to serve

       interrogatories upon a non-party but do permit a party to take oral and written

       depositions of a non-party and to serve a non-party with a discovery request.


[18]   The State notes Eldridge’s acknowledgement that the civil rules governing post-

       conviction proceedings do not permit a party to serve interrogatories upon a

       non-party. It argues that the post-conviction court did not err when it required

       the cause to proceed by affidavit where the appearance of counsel occurred well

       after the cause had already proceeded by affidavit. The State also contends that

       the trial court did not abuse its discretion in denying Eldridge’s motion to

       continue given the lateness of the motion, lack of specific claims, and

       procedural posture.


[19]   Ind. Post-Conviction Rule 1(9)(b) provides in part:

               In the event petitioner elects to proceed pro se, the court at its
               discretion may order the cause submitted upon affidavit. It need
               not order the personal presence of the petitioner unless his
               presence is required for a full and fair determination of the issues
               raised at an evidentiary hearing. If the pro se petitioner requests

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 12 of 19
               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.


[20]   Ind. Post-Conviction Rule 1(5) provides:


               All rules and statutes applicable in civil proceedings including
               pre-trial and discovery procedures are available to the parties,
               except as provided above in Section 4(b). The court may receive
               affidavits, depositions, oral testimony, or other evidence and may
               at its discretion order the applicant brought before it for the
               hearing. The petitioner has the burden of establishing his
               grounds for relief by a preponderance of the evidence.


[21]   Generally, “if the PCR court orders the cause submitted by affidavit under Rule

       1(9)(b), it is the court’s prerogative to determine whether an evidentiary hearing

       is required, along with the petitioner’s personal presence, to achieve a ‘full and

       fair determination of the issues raised[.]’” Smith v. State, 822 N.E.2d 193, 201

       (Ind. Ct. App. 2005), trans. denied. We review the post-conviction court’s

       decision to forego an evidentiary hearing when affidavits have been submitted

       under Rule 1(9)(b) under an abuse of discretion standard. Id. The post-

       conviction court has the discretion to determine whether to grant or deny the

       petitioner’s request for a subpoena. Pannell v. State, 36 N.E.3d 477, 486 (Ind.

       Ct. App. 2015), trans. denied. We will not reverse a trial court’s decision on

       discovery absent an abuse of discretion. Roche v. State, 690 N.E.2d 1115, 1133

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 13 of 19
       (Ind. 1997), reh’g denied. As for Eldridge’s motion to continue, it is well-

       established that we review the grant or denial of a continuance for abuse of

       discretion. Tapia v. State, 753 N.E.2d 581, 586 (Ind. 2001). An abuse of

       discretion occurs only where the evidence is clearly against the logic and effect

       of the facts and circumstances. See Pannell, 36 N.E.3d at 486; Evans v. State, 809

       N.E.2d 338, 342 (Ind. Ct. App. 2004), trans. denied.


[22]   We hold in Part II below that Eldridge’s trial counsel was not ineffective for

       failing to object to the trial court’s failure to explicitly accept the plea

       agreement. The claims raised in Eldridge’s petition and his affidavit did not

       raise issues which required any factual determination, and Eldridge fails to

       establish how the testimony of his trial counsel or an evidentiary hearing would

       have aided him. We cannot say that the post-conviction court abused its

       discretion in ordering the parties to proceed by affidavit in its December 23,

       2015 order, in denying Eldridge’s request to compel his trial and appellate

       counsel to respond to interrogatories, or in denying his motion for a

       continuance. The motion did not allege the possibility of additional claims and

       was filed more than ten months after his September 2015 petition, four months

       after the date the court imposed for Eldridge to submit his case by affidavit, and

       three days before the date proposed findings of fact and conclusions thereon

       were due. See Pannell, 36 N.E.3d at 487 (“[T]he facts in the record are sufficient

       for us to address [the petitioner’s] arguments because we may conclude from

       the face of [the petitioner’s] motion that the testimony he expected from his

       requested witnesses would not have been relevant or probative to his post-


       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 14 of 19
       conviction ineffective assistance of counsel or prosecutorial misconduct claims

       and, therefore, the post-conviction court was not required to issue his subpoena

       requests. As a result, the post-conviction court did not abuse its discretion, and

       the court’s failure to enter findings before denying the subpoenas was not a

       reversible error.”), trans. denied; Smith, 822 N.E.2d at 201 (holding that “other

       than claiming that the affidavits he and the State submitted raised issues of fact,

       [the petitioner] has failed to show how an evidentiary hearing would have aided

       him”); Lloyd v. State, 717 N.E.2d 895, 902 (Ind. Ct. App. 1999) (holding that

       petitioner failed to present an issue of fact which would afford him a hearing

       regarding his assertion that his trial counsel was ineffective in failing to object to

       a prosecutor’s comment), reh’g denied, trans. denied.


                                                         II.


[23]   The next issue is whether Eldridge was denied the effective assistance of trial

       counsel. He asserts that his trial counsel’s failure to object when the court

       imposed sentence without having accepted his guilty plea resulted in him being

       sentenced without first having been convicted and that this amounted to

       fundamental error requiring reversal even absent any showing of prejudice. The

       State argues that Eldridge’s defense counsel had no reasonable basis for

       objecting to the sentence and that Eldridge cannot show that an objection

       would have altered any of the results as the trial court would simply have made

       its acceptance of the guilty plea more explicit.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 15 of 19
[24]   Generally, to prevail on a claim of ineffective assistance of counsel, a petitioner

       must demonstrate both that his counsel’s performance was deficient and that

       the petitioner was prejudiced by the deficient performance. French v. State, 778

       N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104

       S. Ct. 2052 (1984), reh’g denied). Counsel’s performance is deficient if it falls

       below an objective standard of reasonableness based on prevailing professional

       norms. Id. 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.

       Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). “[L]ogic dictates that ‘a verdict

       or conclusion only weakly supported by the record is more likely to have been

       affected by errors than one with overwhelming record support.’” Hilliard v.

       State, 609 N.E.2d 1167, 1169-1170 (Ind. Ct. App. 1993) (quoting Strickland, 466

       U.S. at 696, 104 S. Ct. at 2069)). Failure to satisfy either prong will cause the

       claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel

       claims can be resolved by a prejudice inquiry alone. Id.


[25]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 16 of 19
       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to

       the failure to object, the defendant must show a reasonable probability that the

       objection would have been sustained if made. Passwater v. State, 989 N.E.2d

       766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001),

       cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)).


[26]   “When a defendant pleads guilty, he makes a judicial admission of actual

       guilt.” Ford v. State, 570 N.E.2d 84, 87 (Ind. Ct. App. 1991) (citing Patton v.

       State, 517 N.E.2d 374, 375 (Ind. 1987), reh’g denied), trans. denied. “The plea

       itself is a guilty verdict.” Id. (citing McKrill v. State, 452 N.E.2d 946, 949 (Ind.

       1983)). “It has long been the law in this state that no reversible error occurs

       when a court conducts a hearing at which a guilty verdict is made, does not

       formally enter judgment on that verdict, but then sentences the defendant.” Id.

       (citing Thompson v. State, 492 N.E.2d 264, 271-272 (Ind. 1986), reh’g denied).

       The Indiana Supreme Court has held that “[f]ailure to enter judgment prior to



       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017   Page 17 of 19
       sentencing does not constitute error where the defendant is otherwise properly

       sentenced.” Thompson, 492 N.E.2d at 272.


[27]   Moreover, as pointed out by the post-conviction court and the State, if

       Eldridge’s trial counsel had objected, the trial court could easily have corrected

       the claimed error by accepting the plea agreement. Thus, Eldridge cannot show

       he was prejudiced by his counsel’s failure to object on that basis. The evidence

       as a whole does not unerringly and unmistakably lead to a conclusion opposite

       that reached by the post-conviction court. 4 See Ford, 570 N.E.2d at 87 (rejecting

       the petitioner’s argument that the trial court erred by sentencing him without

       having formally accepted his guilty plea on the record and observing that the

       petitioner did not deny his guilt and affirmed several times to the trial court

       prior to sentencing he was pleading guilty).


                                                        Conclusion

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

       Eldridge’s petition for post-conviction relief.


[29]   Affirmed.




       4
         To the extent Eldridge asserts fundamental error, the Indiana Supreme Court has stated that it is wrong to
       review a fundamental error claim in a post-conviction proceeding, that “the fundamental error exception to
       the contemporaneous objection rule applies to direct appeals,” and that “[i]n post-conviction proceedings,
       complaints that something went awry at trial are generally cognizable only when they show deprivation of
       the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.” Sanders
       v. State, 765 N.E.2d 591, 592 (Ind. 2002).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1609-PC-2045 | February 21, 2017            Page 18 of 19
Vaidik, C.J., and Bradford, J., concur.




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