MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 17 2018, 8:58 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Kevin Jemar Mamon Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Angela N. Sanchez
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Jemar Mamon, January 17, 2018
Appellant-Defendant, Court of Appeals Case No.
30A01-1602-PC-435
v. Appeal from the Hancock Superior
Court
State of Indiana, The Honorable R. Kent Apsley,
Appellee-Plaintiff. Special Judge
Trial Court Cause No.
30D01-1501-PC-83
Bailey, Judge.
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Case Summary
[1] Kevin Jemar Mamon (“Mamon”) appeals, pro se, the denial of his petition for
post-conviction relief, which challenged several convictions that stemmed from
events following a traffic stop. Mamon represented himself at his underlying
trial, but was represented by counsel during most of the pre-trial phase. On
appeal, Mamon focuses on a single issue, which we restate as whether Mamon
received ineffective assistance of counsel because his pre-trial counsel did not
file a motion to suppress evidence, and this allegedly precluded Mamon from
later challenging the constitutionality of the traffic stop.1
[2] We affirm.
Facts and Procedural History
[3] On direct appeal, a panel of this Court provided the following recitation:
On April 10, 2012, Indiana State Police Trooper Matthew
Wilson was parked on Interstate Highway 70 in Hancock
County, watching traffic in a construction zone. He saw a Jeep
1
In his reply brief, Mamon briefly asserts that counsel was ineffective for failing to challenge the propriety of
venue in Hancock County, and that the post-conviction court erred in certain respects, including by failing to
“examine the entirety of the lawyer’s work on the case.” Reply Br. At 6. However, an appellant waives any
issue first raised in the reply brief. See Ind. Appellate Rule 46(C) (“No new issues shall be raised in the reply
brief.”); Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 977-78 (Ind. 2005) (“The law is well settled
that grounds for error may only be framed in an appellant’s initial brief and if addressed for the first time in
the reply brief, they are waived.”).
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Cherokee following another vehicle too closely and pulled it
over.
Mamon was driving the Jeep. When Wilson asked for a driver’s
license, Mamon provided an identification card. Mamon
showed signs of intoxication, like red, glassy eyes. The Jeep’s
interior smelled of alcohol.
Trooper Wilson went back to his car to find out whether
Mamon’s license was suspended and to retrieve his portable
Breathalyzer. He confirmed that Mamon’s license was
suspended, but before he could return to the Jeep, Mamon got
out and walked away along the highway.
Wilson activated his car’s public address system and ordered
Mamon to return to his Jeep. Mamon ignored Wilson three
times, so Wilson parked his squad car in front of him and again
ordered him to return to the Jeep. Mamon walked back to the
Jeep only after Wilson threatened to arrest him for resisting law
enforcement.
Wilson moved his car back to the Jeep and parked behind it.
Mamon reentered the Jeep and drove away at a high rate of
speed. Wilson followed, with his lights and siren activated.
Mamon sped through the construction zone, traveling up to
eighty miles an hour while changing lanes without signaling and
“running people off the road.” Tr. p. 155. Wilson ended the
chase after a mile and a half because it was too dangerous for the
traffic conditions. Other officers later arrested Mamon.
The State charged Mamon with class D felony resisting law
enforcement, class A misdemeanor criminal recklessness, class B
misdemeanor reckless driving, and being a habitual offender.
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Mamon v. State, 6 N.E.3d 488, 489-90 (Ind. Ct. App. 2014).
[4] The trial court appointed a public defender, who first appeared on behalf of
Mamon on June 14, 2012. Subsequently, Mamon expressed his desire to
represent himself, and the trial court held a hearing on the matter on November
1, 2012. At the conclusion of the hearing, the trial court granted Mamon’s
request to represent himself, and the court instructed the public defender to
serve as standby counsel. The trial court specified that standby counsel could
assist Mamon only with leave of the court and that Mamon could request the
assistance of standby counsel at any time.
[5] A jury trial was held on December 17, 2012, at which Mamon represented
himself. Mamon was found guilty as charged, and he subsequently admitted to
being a habitual offender. Thereafter, Mamon—with the assistance of appellate
counsel—pursued a direct appeal, in which he acknowledged that he had not
objected to the admission of evidence procured as a result of the traffic stop. Id.
at 489-90. This Court reviewed for fundamental error, and ultimately affirmed
Mamon’s convictions because Mamon had not made a “claim of evidence
fabrication or willful malfeasance on the part of law enforcement.” Id.
[6] On January 7, 2015, Mamon filed a pro se petition for post-conviction relief,
which he later amended. Following a hearing on Mamon’s amended petition,
the post-conviction court entered an order denying post-conviction relief.
[7] Mamon now appeals.
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Discussion and Decision
[8] The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). “When appealing the denial of post-conviction relief, the petitioner
stands in the position of one appealing from a negative judgment.” Ellis v. State,
67 N.E.3d 643, 646 (Ind. 2017). To prevail, the petitioner must show “that the
evidence leads unerringly and unmistakably to a conclusion opposite that
reached by the post-conviction court.” Humphrey v. State, 73 N.E.3d 677, 681
(Ind. 2017). Here, the post-conviction court made findings of fact and
conclusions of law in accordance with Post-Conviction Rule 1(6). Although we
do not defer to the post-conviction court’s legal conclusions, “[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. Ben-Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000).
[9] The Sixth Amendment to the United States Constitution guarantees two
conflicting rights: the right to counsel and the right to self-representation. See
Faretta v. California, 422 U.S. 806, 832-34 (1975). “The policy supporting the
right of self-representation is personal autonomy,” Carter v. State, 512 N.E.2d
158, 162 (Ind. 1987), a purpose that stands in contrast to that of the right to
counsel, which “is to protect an accused from conviction resulting from his own
ignorance of his legal and constitutional rights.” Id. A petitioner is entitled to
post-conviction relief if he can demonstrate that he received ineffective
assistance of counsel, that is, he must demonstrate that counsel’s deficient
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performance was prejudicial. See, e.g., Humphrey v. State, 73 N.E.3d at 682.
However, “[a] defendant who proceeds pro se . . . must accept the burdens and
hazards of self-representation. He may not assert a Sixth Amendment claim of
ineffective assistance of counsel because he, in effect, would be alleging himself
ineffective.” Carter, 512 N.E.2d at 162 (citations omitted).
[10] Mamon alleges that he received ineffective assistance of counsel because his
pre-trial counsel failed to file a motion to suppress the evidentiary fruits of the
traffic stop. In so arguing, Mamon points out that the omnibus date had passed
before he began representing himself, and he asserts that passage of the
omnibus date rendered “the issues . . . closed for jury trial.” Appellant’s Br. at
8. Mamon further contends that the trial court was “not timely noticed on the
matter,” and that the filing of a pre-trial motion to suppress “would have
obviated any need for a trial.” Id.
[11] Yet, Mamon has not demonstrated that the performance of his pre-trial counsel
prevented him from challenging the stop, either before the trial or after the trial
commenced. Indeed, Mamon began representing himself more than a month
before trial, and he did not file or seek to file a pre-trial motion to suppress;
Mamon merely speculates that the trial court would have refused to consider
his pre-trial motion after the omnibus date. Moreover, at trial, Mamon failed to
object to the admission of the evidence he now complains of, missing a plain
opportunity to challenge the constitutionality of the stop. Thus, even if we
assume for the sake of argument that the stop was unconstitutional, Mamon—
through his own inaction—is responsible for any error for which he now claims
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entitlement to relief. See Faretta, 422 U.S. at 834 n.46 (“[A] defendant who
elects to represent himself cannot thereafter complain that the quality of his
own defense amounted to a denial of ‘effective assistance of counsel.’”); Carter,
512 N.E.2d at 162; cf. Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (“[A]
party may not take advantage of an error that she commits, invites, or which is
the natural consequence of her own neglect or misconduct.”).
[12] Furthermore, although Mamon asserts that he would not have elected to
represent himself “[b]ut for pre-trial counsel’s pre-trial errors,” Reply Br. at 4,
Mamon stated that he wished to represent himself because he knew the “type of
defense that [he] want[ed] presented.” Exh. DD. Thus, Mamon sought
autonomy, and the exercise of the Sixth Amendment right to self-representation
does not amount to cognizable prejudice. See Faretta, 422 U.S. at 834 (stating
that “although [a defendant] may conduct his own defense ultimately to his
own detriment, his choice must be honored out of that respect for the individual
which is the lifeblood of the law” (internal quotation marks omitted)).
Ultimately, a party representing himself “is held to the same standards as a
trained attorney and is afforded no inherent leniency simply by virtue of being
self-represented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014). Here, on
more than one occasion, the court warned Mamon of the risks of proceeding
pro se, and Mamon insisted on exercising his right to do so. Because Mamon
has not demonstrated that pre-trial counsel’s performance precluded him from
taking any action to challenge the admission of evidence, the post-conviction
court did not clearly err in denying Mamon’s petition in this respect.
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[13] Affirmed.
Kirsch, J., and Pyle, J., concur.
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