Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Apr 25 2013, 9:34 am
regarded as precedent or cited before any
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:
CHARLES E. JUSTISE, SR. GREGORY F. ZOELLER
Michigan City, Indiana Attorney General of Indiana
ANDREW A. KOBE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARLES E. JUSTISE SR., )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1209-PC-736
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert Altice, Judge
Cause No. 49G02-0509-PC-151284
April 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Charles E. Justise, Sr. appeals from the denial of his petition for post-conviction relief
and argues that the post-conviction court erred in denying him relief.
We affirm.
On September 6, 2005, Justise was charged with one count of class B felony
aggravated battery and three counts of class C felony battery. Following a jury trial at which
Justise proceeded pro se, Justise was convicted of two counts of class C felony battery and
acquitted of the remaining charges. On July 12, 2006, the trial court sentenced Justise to
consecutive five-year terms on both counts, resulting in a ten-year executed sentence.
Appellate counsel filed a notice of appeal on Justise’s behalf on August 4, 2006.
Justise subsequently filed a motion to proceed pro se, which was granted, and appellate
counsel was ordered to withdraw her appearance. This court ultimately dismissed Justise’s
direct appeal due to his failure to timely file an appellant’s brief. On June 10, 2011, Justise,
still proceeding pro se, filed the current petition for post-conviction relief, in which he
alleged multiple freestanding claims of trial error. The post-conviction court granted
Justise’s motion to proceed by affidavit, and issued its order denying Justise’s petition for
post-conviction relief on July 3, 2012. The post-conviction court found, in pertinent part,
that “[u]nquestionably, each of Justise’s complaints is a free-standing issue that was available
for review in his direct appeal.” Appellant’s Appendix at 117. Justise filed a motion to
correct error, which the post-conviction court denied. Justise now appeals.
Post-conviction proceedings are not “super appeals” through which convicted persons
can raise issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d
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389, 391 (Ind. 2002). “Rather, they create a narrow remedy for subsequent collateral
challenges to convictions which must be based on grounds enumerated in the post-conviction
rules.” Wrinkles v. State, 749 N.E.2d 1179, 187 (Ind. 2001). A post-conviction petitioner
bears the burden of establishing grounds for relief by a preponderance of the evidence.
Henley v. State, 881 N.E.2d 639 (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 confine our review to
determining whether the court’s findings are sufficient to support its judgment. Graham v.
State, 941 N.E.2d 1091 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962. Although we
do not defer to the post-conviction court’s legal conclusions, we review the post-conviction
court’s factual findings under the “clearly erroneous” standard. Id. Accordingly, we will not
reweigh the evidence or judge the credibility of witnesses, and we will consider only the
probative evidence and reasonable inferences flowing therefrom that support the post-
conviction court’s decision. Id.
“Post-conviction procedures do not provide a petitioner with an opportunity to present
freestanding claims that contend the original trial court committed error.” Wrinkles v. State,
749 N.E.2d at 1187 n.3. Rather, “‘[i]n post-conviction proceedings, complaints that
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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.’” Bunch v. State, 778 N.E.2d 1285, 1289-90 (Ind. 2002) (quoting Sanders v. State,
765 N.E.2d 591, 592 (Ind. 2002)).
With the exception of his claims of sentencing error, Justise concedes that he has
raised only freestanding claims of error unavailable to him through a petition for post-
conviction relief. Although Justise does not dispute that his sentencing claims were known
and available on direct appeal, he argues that he may nevertheless present these claims in a
petition for post-conviction relief because they amount to fundamental error. It is well
settled, however, that freestanding claims of fundamental error are unavailable on post-
conviction review. Bunch v. State, 778 N.E.2d 1285; Sanders v. State, 765 N.E.2d 591;
Smith v. State, 792 N.E.2d 940, 943 (Ind. Ct. App. 2003). Accordingly, Justise’s
freestanding fundamental error claim is foreclosed in the instant collateral proceedings. The
fact that Justise’s direct appeal was dismissed due to his failure to timely file a brief does
nothing to alter this conclusion. See Taylor v. State, 780 N.E.2d 430 (Ind. Ct. App. 2002)
(holding that freestanding claims of sentencing error were not available in post-conviction
proceedings despite the fact that petitioner did not file a direct appeal). We therefore
conclude that the trial court did not err in denying Justise’s petition for post-conviction relief.
Judgment affirmed.
ROBB, C.J., and CRONE, J., concur.
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