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MEMORANDUM DECISION – NOT FOR PUBLICATION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
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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.
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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
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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.
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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.
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