Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Oct 04 2013, 9:46 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:
MARK GREGORY GREGORY F. ZOELLER
Pendleton, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARK GREGORY, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1302-PC-198
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable David A. Happe, Judge
Cause No. 48C01-1201-PC-4
October 4, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Mark Gregory (“Gregory”) was ordered to serve an aggregate eighty-eight year
sentence, which, upon petition and after he had served only eleven of those eighty-eight
years, was modified to probation for the remainder of his term. Two months after the
modification, Gregory violated his probation. His probation was revoked and he was
ordered to serve his remaining term of approximately sixty-five years in the Department
of Correction. He subsequently filed a petition for post-conviction relief challenging the
legality of the sentence modification and the effectiveness of his trial and appellate
counsel. The post-conviction court denied his petition and Gregory now appeals pro se
and presents four issues, which we consolidate and restate as:
I. Whether the post-conviction court clearly erred in concluding that
Gregory’s due process rights were not violated by the sentencing
modification court;
II. Whether the post-conviction court clearly erred in concluding that Gregory
was not denied the effective assistance of trial counsel; and
III. Whether the post-conviction court clearly erred in concluding that Gregory
was not denied the effective assistance of appellate counsel.
We affirm.
Facts and Procedural History
On May 6, 1998, Gregory pleaded guilty to eight counts of class B felony burglary
and eight counts of class D felony theft under Cause Number 48C01-9803-CF-49
(“Cause No. 49”). On August 17, 1998, the trial court sentenced him to ten years for
each of the eight burglary counts, to run consecutively, and three years for each of the
theft counts, to run concurrently. Gregory’s aggregate sentence was eighty years, with
fifty-five years executed and twenty-five years suspended to probation.
2
On April 20, 2001, Gregory was charged with class C felony escape under Cause
Number 48C01-9809-CF-226 (“Cause No. 226”). He was sentenced to eight years, with
four years executed and four years suspended to probation. The sentence imposed under
Cause No. 226 was to run consecutive to his eight-year sentence in Cause No. 49.
Approximately eight years later, after serving approximately eleven years of his
sentence under Cause No. 49, on March 31, 2009, Gregory petitioned for sentence
modification. Following an April 20, 2009 hearing, the trial court denied Gregory’s
request. Gregory filed an amended petition for sentence modification on June 18, 2009.
On July 6, 2009, the trial court held a hearing on Gregory’s petition and granted his
request, ordering that his sentence be “modified to probation for balance of sentence.”
Appellant’s App. pp. 200-01.
Approximately two months later, on September 3, 2009, the Probation Department
filed a petition for violation of probation in Cause No. 49. The petition alleged that on
August 31, 2009, Gregory violated the terms of his probation by committing burglary and
theft. The Probation Department later filed an amended notice of violation of probation
in Cause Nos. 49 and 226. After holding hearings on June 14, 2010 and August 16, 2010,
the trial court revoked Gregory’s probation and remanded him to the Department of
Correction to serve 20,914 days for Cause No. 49 and eight years for Cause No. 226.
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Gregory appealed his probation revocation, arguing that the trial court’s order
remanding him to sixty-five years in the Department of Correction exceeded the original
sentence.1 A panel of this court affirmed the trial court’s judgment.
On January 27, 2012, Gregory, pro se, filed a petition for post-conviction relief.
He claimed that the sentence modification court erred in failing to inform him of the
maximum penalty for the probation violation. He also argued that the sentence imposed
by the court after the probation violation was illegal, that his counsel during the sentence
modification hearing was ineffective, and that his appellate counsel was ineffective. The
post-conviction court held a hearing on November 8, 2012. On February 13, 2013, the
post-conviction court issued findings of fact and conclusions of law, denying Gregory
relief. Gregory now appeals pro se.
Standard of Review
Post-conviction proceedings are not “super appeals” through which convicted
persons can raise freestanding issues they failed to raise at trial or on direct appeal.
McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Rather, post-conviction proceedings
afford petitioners a limited opportunity to raise issues that were unavailable or unknown
at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A
post-conviction petitioner bears the burden of establishing grounds for relief by a
1
On appeal, Gregory argued that the Indiana probation revocation statute, Indiana Code § 35-38-2-3,
limited his prison term following his probation violation to twenty-nine years. Specifically, he argued
that the statute allowed the trial court to impose only the part of the sentence that was suspended at the
time of the initial sentencing. Gregory’s initial sentence carried a suspended term of twenty-five years in
Cause No. 49 and four years in Cause No. 226. A panel of this court found that the remanded sentence
was proper since, in 2009, the balance of the sentences in both causes were modified to probation and the
executed time was thus converted to suspended time. Gregory v. State, 945 N.E.2d 832 (Ind. Ct. App.
2011) trans. denied.
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preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). On
appeal from the denial of post-conviction relief, the petitioner stands in the position of
one appealing from a negative judgment. Id. To prevail on appeal from the denial of
post-conviction relief, the petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite that reached by the post-conviction
court. Id. at 643-44.
Where, as here, the post-conviction court makes findings of fact and conclusions
of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer to the
court’s legal conclusions, but the “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. at 644.
I. Sentencing Modification
Gregory argues that the post-conviction court erred in concluding that the sentence
modification court did not violate his due process rights when it failed to “clearly state
the maximum possible penalty for a probation violation.” Appellant’s Br. at 6. He
asserts:
[M]odification proceedings are no different than an actual sentencing
hearing with respect to how the court should approach it. When the court
agrees to modify a sentence, they are for all intents and purposes
resentencing a defendant for convictions. The most important part of a
sentencing hearing for a defendant would be how long the court has
determined he will spend in prison.
Id.
5
Gregory further argues that the probation violation court violated his due process
rights when it sentenced him to 57.3 years for his probation violation on Cause No. 49.
He claims, “[t]his is error due to the fact that under statute the sentence for the class B
felony Burglaries could not be suspended below the minimum of six years each.” Id. at 8.
He argues that the sentence modification “should have included a change from
consecutive to concurrent sentences.” Id. Thus, while Gregory frames his argument as a
due process issue, he is actually asserting that the sentence modification court erred when
it re-sentenced him in a way that did not comply with Indiana Code § 35-50-2-2.
Gregory failed to appeal these freestanding claims of sentencing error following
the modification of his sentence. Both Gregory’s claim that the sentencing modification
court failed to state the maximum penalty for a probation violation and his claim that the
court imposed an illegal sentence were known and available to be raised on direct appeal.
“Issues which were or could have been raised on direct appeal are not available for
review in post-conviction.” Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).
Having failed to raise his sentencing arguments in either a direct appeal or as a new issue
eligible for post-conviction relief, Gregory has waived this issue in this appeal. See
Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002).
II. Ineffective Assistance of Trial Counsel
Gregory next argues that the post-conviction court erred when it concluded that he
did not receive ineffective assistance of trial counsel. To prevail on a claim of ineffective
assistance of counsel, Gregory must show both that counsel’s performance fell below an
objective standard of reasonableness and that the deficient performance prejudiced him.
6
Coleman v. State, 694 N.E.2d 269, 272 (Ind. 1998) (citing Strickland v. Washington, 466
U.S. 668 (1984)). There is a strong presumption that counsel rendered adequate
assistance. Id. “Evidence of isolated poor strategy, inexperience or bad tactics will not
support a claim of ineffective assistance.” Id. at 273.
To establish the prejudice prong of the test, the petitioner must show there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Sims v. State, 771 N.E.2d 734, 741 (Ind. Ct. App.
2002), trans. denied. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “Prejudice exists when the conviction or sentence
resulted from a breakdown in the adversarial process that rendered the result of the
proceeding fundamentally unfair or unreliable.” Coleman, 694 N.E.2d at 272. This
standard applies to both claims of ineffective assistance of trial and appellate counsel.
See Rhoiney v. State, 940 N.E.2d 841, 845 (Ind. Ct. App. 2010), trans. denied.
Gregory argues that trial counsel was ineffective for failing to “inquire of the court
at the sentence modification hearing regarding the maximum possible penalty Mr.
Gregory faced if he violated his probation” and failing to “inquire what Mr. Gregory’s
sentence was being modified to, allowing the Court to issue an illegal sentence
modification.” Appellant’s Br. at 11.
At the post-conviction hearing, Gregory’s trial counsel testified that he failed to
inquire of the court the maximum penalty for a probation violation and the specific nature
of Gregory’s sentence modification because he was “surprised that [Gregory was] going
to be getting out the next day and [he] didn’t want to argue with the judge about that.” Tr.
7
p. 9. The post-conviction court found that Gregory’s trial counsel was not ineffective and
that his failure to raise the sentencing issues involved “a strategic decision not to object to
any statutory imperfection in the modification, because the Court indicated that it would
be releasing [Gregory].” Appellant’s App. p. 83.
We agree with the post-conviction court that counsel’s performance at Gregory’s
sentence modification hearing did not prejudice Gregory. After the hearing, the court
agreed to modify the balance of Gregory’s aggregate eighty-eight year sentence to
probation. Since Gregory had served only approximately eleven years of that sentence, it
is clear that his counsel obtained a very favorable result for Gregory. For these reasons,
we cannot conclude that Gregory received ineffective assistance of trial counsel.
III. Ineffective Assistance of Appellate Counsel
Gregory also argues that his appellate counsel was ineffective for failing to
“challenge the Court’s error in not stating the maximum possible penalty for Mr. Gregory
committing a violation of probation” and failing to “challenge the fact that the Court
sentenced Mr. Gregory for a violation based on an illegal sentence.” Appellant’s Br. at
12.
Our supreme court has recognized three types of ineffective assistance of appellate
counsel: (1) denial of access to appeal; (2) failure to raise issues that should have been
raised; and (3) failure to present issues well. Wrinkles v. State, 749 N.E.2d 1179, 1203
(Ind. 2001).
When a petitioner claims the denial of effective assistance of appellate
counsel because counsel did not raise issues the petitioner argues should
have been raised, reviewing courts should be particularly deferential to
8
counsel’s strategic decision to exclude certain issues in favor of others,
unless such a decision was unquestionably unreasonable. However, this
does not end our analysis. Even if we determine that counsel’s choice of
issues was not reasonable, a petitioner must demonstrate a reasonable
probability that the outcome of the direct appeal would have been different
in order to prevail.
Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006) (citations and quotation marks omitted).
We must determine “(1) whether the unraised issues are significant and obvious
from the face of the record; and (2) whether the unraised issues are clearly stronger than
the raised issues.” Gray v. State, 841 N.E.2d 1210, 1214 (Ind. Ct. App. 2006), trans.
denied (citation omitted). If this analysis establishes deficient performance on counsel’s
part, we then analyze whether the issue or issues that counsel failed to raise clearly would
have been more likely to result in reversal or a new trial than the issue or issues that
counsel actually raised. Williamson v. State, 798 N.E.2d 450, 454 (Ind. Ct. App. 2003).
The ultimate issue under the prejudice prong is whether, but for counsel’s error or errors,
there is a reasonable probability that the outcome of the defendant’s direct appeal would
have been different. Id.
Here, Gregory argues, “[t]he two due process issues that counsel failed to raise are
clearly issues in which the Court would grant reversal of the probation violation sentence.”
Appellant’s Br. at 13. We disagree. Appellate counsel filed the appeal from the
probation violation proceeding rather than from the sentence modification. See Gregory
v. State, 945 N.E.2d 832 (Ind. Ct. App. 2011) trans. denied. Therefore, any argument as
to the propriety of the sentence modification was unavailable to Gregory. Counsel’s
challenge to the length of the sentence imposed as a result of Gregory’s probation
9
violation was the only issue appellate counsel could properly raise on appeal. See
Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind. 2002) (providing that defendant could
not challenge trial court’s imposition of consecutive sentences for two counts of forgery
on appeal from his probation revocation, since the issue of permissibility of his sentence
under sentencing statute was not before trial court in his probation revocation
proceeding). Gregory cannot raise a claim of ineffective assistance of appellate counsel
for an appeal that does not exist. For these reasons, we conclude that Gregory has failed
to establish ineffective assistance of appellate counsel.
Conclusion
For reasons unknown to this court, Gregory squandered a truly life-changing
opportunity to put a long prison sentence behind him when he violated his probation
hardly two months after his release. Gregory’s post-conviction claim that his sentence
modification was improper was known and could have been raised on direct appeal but
was not and, thus, was waived. Gregory also has not established that he received
ineffective assistance of trial or appellate counsel. We therefore affirm the post-
conviction court’s denial of Gregory’s petition for post-conviction relief.
Affirmed.
NAJAM, J., and BROWN, J., concur.
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Mark Gregory v. State of Indiana
Combined Opinion