Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                        FILED
any court except for the purpose of                        Dec 19 2012, 8:42 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                      CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




APPELLANT PRO SE:                                ATTORNEYS FOR APPELLEE:

LARRY GARMON                                     GREGORY F. ZOELLER
New Castle, Indiana                              Attorney General of Indiana

                                                 GEORGE P. SHERMAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

LARRY GARMON,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 48A02-1202-PC-170
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE MADISON CIRCUIT COURT
                          The Honorable Dennis D. Carroll, Judge
                              Cause No. 48C06-1107-PC-30



                                      December 19, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Larry Garmon appeals the post-conviction court’s denial of his petition for post-

conviction relief. Garmon raises three issues for our review, which we restate as the

following two issues:

       1.     Whether the post-conviction court abused its discretion when it
              denied Garmon’s same-day motion to continue the evidentiary
              hearing on his petition for post-conviction relief; and

       2.     Whether the post-conviction court erred when it denied Garmon’s
              petition.

       We affirm.

                        FACTS AND PROCEDURAL HISTORY

       The facts underlying Garmon’s conviction for Class B felony criminal deviate

conduct were stated by this court on his direct appeal:

       On October 23, 2001, Alan Fowler was arrested for possession of a
       handgun without a license and placed in the Madison County Jail. Garmon
       was Fowler’s cellmate at the jail. While Fowler was incarcerated, Garmon
       asked several other inmates in the same cellblock what they would do if
       they woke up while someone was performing oral sex on them. On
       October 29, 2001, Fowler woke up in the middle of the night to find
       Garmon performing oral sex on him. While performing oral sex, Garmon
       held Fowler by the wrists and knees so that he could not move. A few days
       later, after Garmon was transferred to another cellblock, Fowler told of the
       incident to another inmate, who reported the incident to a guard.

               On December 18, 2001, the State filed an amended information
       alleging that Garmon had committed two counts of Class B felony criminal
       deviate conduct. Before the jury trial began, Garmon’s attorney made what
       appears to be an oral motion in limine to prevent the other inmates from
       testifying that Garmon asked them what would they do if they woke up and
       someone was performing oral sex on them. The trial court denied
       Garmon’s motion. On December 17, 2002, the jury found Garmon guilty
       as charged. The trial court merged Count II into Count I and sentenced
       Garmon accordingly.


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Garmon v. State, No. 48A02-0212-CR-1051, at 2-3 (Ind. Ct. App. June 10, 2003)

(footnote omitted), trans. denied (“Garmon I”). In a footnote, we explained the apparent

difference between the State’s Count I and Count II:

       Count I alleged that Garmon committed criminal deviate conduct in
       violation of Indiana Code Section 35-42-4-2(a)(3). The charge alleged that
       Garmon knowingly caused Fowler to submit to deviate sexual conduct
       while he was disabled or deficient so that consent could not be given
       because Fowler was asleep. Count II alleged that Garmon committed
       criminal deviate conduct in violation of Indiana Code Section 35-42-4-
       2[(a)](1). This count alleged that Garmon knowingly caused Fowler to
       submit to deviate sexual conduct by force or imminent threat of force.

Id. at 3 n.1.

       On direct appeal, Garmon challenged (1) the trial court’s admission of certain

evidence; (2) whether the State had presented sufficient evidence to support his

conviction; and (3) whether he had received the effective assistance of his trial counsel

when his trial counsel failed to object to the evidence Garmon challenged in his first

issue. We affirmed Garmon’s conviction.

       On July 26, 2011, Garmon filed his pro se petition for post-conviction relief

alleging, in relevant part, that he was denied the effective assistance of appellate counsel

when his appellate counsel did not assert on direct appeal that Garmon had been twice

placed in jeopardy by the State’s charging information.          With his filing, Garmon

expressly waived the opportunity to be represented by a public defender.

       On November 7, the post-conviction court held an evidentiary hearing on

Garmon’s petition. At the beginning of the hearing, Garmon moved for a continuance so

he could retain an attorney. The court denied Garmon’s request. At the conclusion of the

hearing, the court instructed Garmon to submit his proposed findings and conclusions by
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December 12.        On December 6, Garmon filed a motion for a continuance on the

December 12 deadline so he could retain an attorney. The court granted Garmon’s

motion and instructed him to file his proposed findings and conclusions by December 28.

Garmon filed his proposed findings and conclusions on January 5, 2012.

        On January 18, the post-conviction court entered its findings of fact and

conclusions of law denying Garmon’s petition for relief. This appeal ensued.

                                DISCUSSION AND DECISION

                              Issue One: Motion for Continuance

        Garmon first argues that the post-conviction court abused its discretion when it

denied his November 7 motion to continue the evidentiary hearing. 1 It is well-established

that we review the post-conviction court’s grant or denial of a motion for a continuance

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

discretion occurs when the court’s judgment is clearly against the logic and effect of the

facts and circumstances before the court or the reasonable, probable, and actual

deductions to be drawn therefrom. Id. at 585.

        The court did not abuse its discretion in denying Garmon’s November 7 motion

for a continuance. Contrary to Garmon’s argument on appeal, he was not “caught with

his pants down” and denied an opportunity for representation by counsel. Appellant’s Br.

at 6. Rather, Garmon expressly waived his opportunity to obtain counsel when he filed

his petition for post-conviction relief on July 26. Appellant’s App. at 1. One month later,


        1
           Garmon separately argues that the trial court abused its discretion when it purportedly denied
his December 6 motion to continue. Appellant’s Br. at 7-8. But the trial court did not deny that motion.
Rather, the court granted Garmon an additional sixteen days to file his proposed findings and conclusions
pursuant to his request. Thus, this argument is without merit.
                                                   4
on August 30, the post-conviction court set the evidentiary hearing for November 7.

Garmon had ample opportunity to retain an attorney in a timely manner before the start of

his evidentiary hearing. Instead, Garmon waited until the start of his evidentiary hearing

to request his continuance. In light of the facts and circumstances before the post-

conviction court, we cannot say that it abused its discretion when it denied Garmon’s

same-day request for a continuance.

                      Issue Two: Effective Assistance of Counsel

      Garmon also argues that the post-conviction court erred when it denied his petition

for relief. Specifically, Garmon asserts that his appellate attorney violated Garmon’s

Sixth Amendment right to counsel when he “did not argue the double jeopardy issue,”

namely, the State having charged Garmon with two counts of criminal deviate conduct.

Appellant’s Br. at 9. We cannot agree.

      As we have explained:

      [The petitioner] bore the burden of establishing the grounds for post-
      conviction relief by a preponderance of the evidence. See Ind. Post-
      Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind.
      2001). Post-conviction procedures do not afford a petitioner with a super-
      appeal, and not all issues are available. Timberlake, 753 N.E.2d at 597.
      Rather, subsequent collateral challenges to convictions must be based on
      grounds enumerated in the post-conviction rules. Id. If an issue was
      known and available, but not raised on direct appeal, it is waived. Id. If it
      was raised on appeal, but decided adversely, it is res judicata. Id.

             In reviewing the judgment of a post-conviction court, appellate
      courts consider only the evidence and reasonable inferences supporting the
      post-conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind.
      2006). The post-conviction court is the sole judge of the evidence and the
      credibility of the witnesses. Id. at 468-69. Because he is now appealing
      from a negative judgment, to the extent his appeal turns on factual issues
      [the petitioner] must convince this court that the evidence as a whole leads
      unerringly and unmistakably to a decision opposite that reached by the
                                            5
       post-conviction court. See Timberlake, 753 N.E.2d at 597. We will disturb
       the decision only if the evidence is without conflict and leads only to a
       conclusion contrary to the result of the post-conviction court. Id.

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

       Further, a claim of ineffective assistance of counsel must satisfy two components.

Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant must show deficient

performance: representation that fell below an objective standard of reasonableness,

committing errors so serious that the defendant did not have the “counsel” guaranteed by

the Sixth Amendment. Id. at 687-88. Second, the defendant must show prejudice: a

reasonable probability (i.e., a probability sufficient to undermine confidence in the

outcome) that, but for counsel’s errors, the result of the proceeding would have been

different. Id. at 694.

       As explained in Garmon I and reiterated by the post-conviction court in its

findings of fact and conclusions of law, although the jury found Garmon guilty on both

Count I and Count II, the trial court “merged” the two counts and only entered its

judgment of conviction on Count I. In Green v. State, 856 N.E.2d 703, 704 (Ind. 2006),

our supreme court held that “a merged offense for which a defendant is found guilty, but

on which there is neither a judgment nor a sentence, is ‘unproblematic’ as far as double

jeopardy is concerned.” Here, there was no judgment entered on Count II, which was a

merged offense. As such, there is no double jeopardy issue. Thus, as the post-conviction

concluded, had Garmon’s appellate counsel argued a double jeopardy violation on direct

appeal, this court would have rejected that argument.




                                            6
       Accordingly, Garmon’s appellate counsel cannot have rendered constitutionally

defective assistance on this purported issue, and the post-conviction court did not err

when it denied Garmon’s petition. Thus, we affirm the post-conviction court’s denial of

post-conviction relief.

       Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




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