MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 28 2018, 11:39 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Dewayne V. Adamson Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dewayne Vernon Adamson, February 28, 2018 Appellant-Defendant, Court of Appeals Case No. 53A01-1608-PC-1912 v. Appeal from the Monroe Circuit Court State of Indiana, The Honorable Kenneth G. Todd, Appellee-Plaintiff. Judge Trial Court Cause No. 53C03-1104-PC-608
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 1 of 9 Case Summary and Issue [1] Dewayne Adamson appeals pro se the post-conviction court’s denial of his
petition for post-conviction relief, raising two issues for our review, which we
consolidate and restate as whether the post-conviction court erred in denying
his petition for post-conviction relief. Concluding the post-conviction court did
not err, we affirm the denial of his petition.
Facts and Procedural History [2] We summarized the facts of this case in Adamson’s direct appeal:
On August 6, 2008, the Monroe County Sheriff’s Department received a report from Adamson’s ex-girlfriend claiming that he and a friend had abducted her, sexually and physically assaulted her, and fired a gun at her. Later that day, Adamson was arrested on an alleged probation violation and his residence was searched, and officers found a loaded AK-47. Adamson has several prior felony convictions, including a 2001 conviction for Class B felony criminal confinement.
On August 12, 2008, the State charged Adamson with Class A felony rape, Class B felony criminal confinement, and the SVF charge. The State subsequently filed two amended informations, and Adamson ultimately stood charged with six counts of Class A felony criminal deviate conduct, Class B felony carjacking, Class B felony criminal confinement, Class C felony intimidation, two counts of Class D felony criminal recklessness, Class D felony strangulation, Class A felony attempted murder, and the Class B felony SVF charge. The State also alleged that Adamson was an habitual offender.
On October 7, 2009, Adamson pled guilty to the SVF charge and to being an habitual offender. The State agreed to dismiss the remaining charges. It is unclear precisely why the State did not wish to pursue the charges on any of the more serious allegations
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 2 of 9 against Adamson, although there are suggestions in the record that the alleged victim did not want to testify against him.
***
The trial court sentenced Adamson to twenty years for the SVF conviction, enhanced by thirty years for the habitual offender admission, for a total of fifty years.
Adamson v. State, No. 53A01-1002-CR-88, slip op. at *1 (Ind. Ct. App. Nov. 30,
2010), trans. denied. We affirmed Adamson’s sentence on direct appeal. Id. at
*3.
[3] On April 6, 2011, Adamson, pro se, filed a petition for post-conviction relief.
Adamson alleged he did not knowingly, voluntarily, or intelligently waive his
constitutional rights, the trial court failed to establish a factual basis for his
guilty plea, and he was inadequately informed of the possible sentences before
accepting the guilty plea. On August 3, 2015, Adamson, by counsel, filed a
motion to amend his petition. Adamson’s amended petition dropped his claim
of waiver and receiving inadequate information regarding possible sentences
and added a claim of ineffective assistance of trial counsel. The post-conviction
court granted his motion to amend and set his petition for post-conviction relief
for a hearing on November 3, 2015. On May 23, 2016, the post-conviction
court issued its order denying Adamson’s petition. Adamson now appeals.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 3 of 9 I. Standard of Review [4] A post-conviction proceeding offers a petitioner an “opportunity to raise issues
that were unknown or unavailable at the time of the original trial or the direct
appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007), trans.
denied. However, a post-conviction proceeding does not constitute “a super
appeal,” and it “provide[s] only a narrow remedy for subsequent collateral
challenges to convictions.” Id.
[5] Post-conviction proceedings are civil in nature and the petitioner bears the
burden of establishing his grounds for relief by a preponderance of the evidence.
Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830
(2003). On appeal from the denial of a petition for post-conviction relief, the
petitioner stands in the position of one appealing from a negative judgment.
Willoughby v. State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied.
Therefore,
[i]n order to prevail, the petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law.
[6] Id. (internal citation and quotation marks omitted). We will not reweigh
evidence or assess the credibility of witnesses. Maymon, 870 N.E.2d at 527.
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 4 of 9 II. Ineffective Assistance of Trial Counsel [7] Adamson first argues his trial counsel was ineffective for failing to move to
disqualify the entire Monroe County Prosecutor’s Office from prosecuting him.
Specifically, Adamson alleges prior legal representation by two current
prosecutors in the Monroe County Prosecutor’s Office should have disqualified
the office from prosecuting him.
[8] To succeed on a claim of ineffective assistance of trial counsel, Adamson must
prove his counsel’s performance was deficient and that he was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Trial
counsel’s performance is deficient if it falls below an objective standard of
reasonableness based on prevailing professional norms. Black v. State, 54
N.E.3d 414, 424 (Ind. Ct. App. 2016), trans. denied. A deficient performance is
prejudicial if there is a reasonable probability that, but for trial 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.” Id.
[9] At the time of Adamson’s guilty plea, Indiana’s special prosecutor statute
permitted a trial court to appoint a special prosecutor when it is evident “by
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 28 2018, 11:39 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Dewayne V. Adamson Curtis T. Hill, Jr. Carlisle, Indiana Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dewayne Vernon Adamson, February 28, 2018 Appellant-Defendant, Court of Appeals Case No. 53A01-1608-PC-1912 v. Appeal from the Monroe Circuit Court State of Indiana, The Honorable Kenneth G. Todd, Appellee-Plaintiff. Judge Trial Court Cause No. 53C03-1104-PC-608
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 1 of 9 Case Summary and Issue [1] Dewayne Adamson appeals pro se the post-conviction court’s denial of his
petition for post-conviction relief, raising two issues for our review, which we
consolidate and restate as whether the post-conviction court erred in denying
his petition for post-conviction relief. Concluding the post-conviction court did
not err, we affirm the denial of his petition.
Facts and Procedural History [2] We summarized the facts of this case in Adamson’s direct appeal:
On August 6, 2008, the Monroe County Sheriff’s Department received a report from Adamson’s ex-girlfriend claiming that he and a friend had abducted her, sexually and physically assaulted her, and fired a gun at her. Later that day, Adamson was arrested on an alleged probation violation and his residence was searched, and officers found a loaded AK-47. Adamson has several prior felony convictions, including a 2001 conviction for Class B felony criminal confinement.
On August 12, 2008, the State charged Adamson with Class A felony rape, Class B felony criminal confinement, and the SVF charge. The State subsequently filed two amended informations, and Adamson ultimately stood charged with six counts of Class A felony criminal deviate conduct, Class B felony carjacking, Class B felony criminal confinement, Class C felony intimidation, two counts of Class D felony criminal recklessness, Class D felony strangulation, Class A felony attempted murder, and the Class B felony SVF charge. The State also alleged that Adamson was an habitual offender.
On October 7, 2009, Adamson pled guilty to the SVF charge and to being an habitual offender. The State agreed to dismiss the remaining charges. It is unclear precisely why the State did not wish to pursue the charges on any of the more serious allegations
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 2 of 9 against Adamson, although there are suggestions in the record that the alleged victim did not want to testify against him.
***
The trial court sentenced Adamson to twenty years for the SVF conviction, enhanced by thirty years for the habitual offender admission, for a total of fifty years.
Adamson v. State, No. 53A01-1002-CR-88, slip op. at *1 (Ind. Ct. App. Nov. 30,
2010), trans. denied. We affirmed Adamson’s sentence on direct appeal. Id. at
*3.
[3] On April 6, 2011, Adamson, pro se, filed a petition for post-conviction relief.
Adamson alleged he did not knowingly, voluntarily, or intelligently waive his
constitutional rights, the trial court failed to establish a factual basis for his
guilty plea, and he was inadequately informed of the possible sentences before
accepting the guilty plea. On August 3, 2015, Adamson, by counsel, filed a
motion to amend his petition. Adamson’s amended petition dropped his claim
of waiver and receiving inadequate information regarding possible sentences
and added a claim of ineffective assistance of trial counsel. The post-conviction
court granted his motion to amend and set his petition for post-conviction relief
for a hearing on November 3, 2015. On May 23, 2016, the post-conviction
court issued its order denying Adamson’s petition. Adamson now appeals.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 3 of 9 I. Standard of Review [4] A post-conviction proceeding offers a petitioner an “opportunity to raise issues
that were unknown or unavailable at the time of the original trial or the direct
appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007), trans.
denied. However, a post-conviction proceeding does not constitute “a super
appeal,” and it “provide[s] only a narrow remedy for subsequent collateral
challenges to convictions.” Id.
[5] Post-conviction proceedings are civil in nature and the petitioner bears the
burden of establishing his grounds for relief by a preponderance of the evidence.
Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert. denied, 540 U.S. 830
(2003). On appeal from the denial of a petition for post-conviction relief, the
petitioner stands in the position of one appealing from a negative judgment.
Willoughby v. State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied.
Therefore,
[i]n order to prevail, the petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law.
[6] Id. (internal citation and quotation marks omitted). We will not reweigh
evidence or assess the credibility of witnesses. Maymon, 870 N.E.2d at 527.
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 4 of 9 II. Ineffective Assistance of Trial Counsel [7] Adamson first argues his trial counsel was ineffective for failing to move to
disqualify the entire Monroe County Prosecutor’s Office from prosecuting him.
Specifically, Adamson alleges prior legal representation by two current
prosecutors in the Monroe County Prosecutor’s Office should have disqualified
the office from prosecuting him.
[8] To succeed on a claim of ineffective assistance of trial counsel, Adamson must
prove his counsel’s performance was deficient and that he was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Trial
counsel’s performance is deficient if it falls below an objective standard of
reasonableness based on prevailing professional norms. Black v. State, 54
N.E.3d 414, 424 (Ind. Ct. App. 2016), trans. denied. A deficient performance is
prejudicial if there is a reasonable probability that, but for trial 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.” Id.
[9] At the time of Adamson’s guilty plea, Indiana’s special prosecutor statute
permitted a trial court to appoint a special prosecutor when it is evident “by
clear and convincing evidence that the appointment is necessary to avoid an
actual conflict of interest . . . .” Kubsch v. State, 866 N.E.2d 726, 731 (Ind. 2007)
(citing Ind. Code § 33-39-1-6(b)(2) (repealed 2014)), cert. denied, 533 U.S. 1067
(2008). In determining whether a prosecutor should be disqualified, the trial
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 5 of 9 court must determine whether the controversy in the pending case is
substantially related to an issue in which the prosecutor, as a private attorney,
previously represented the defendant. Id. The trial court must also determine
whether the prosecutor received confidential information in the prior
representation and whether that information may have subsequently assisted
the prosecution. Id. If an elected prosecutor is disqualified from a case, the
elected prosecutor’s entire staff must also be recused. Larkin v. State, 43 N.E.3d
1281, 1286 (Ind. Ct. App. 2015). However, the disqualification of a deputy
prosecutor does not require the recusal of the entire staff. Id.
[10] On December 7, 1999, the State charged Adamson with rape, a Class A felony;
two counts of criminal deviate conduct, both Class A felonies; and criminal
confinement, a Class B felony. The State also alleged Adamson was an
habitual offender. On December 13, 1999, Robert Miller, now the current
Chief Deputy Prosecuting Attorney of the Monroe County Prosecutor’s Office,
filed an appearance on Adamson’s behalf. On January 31, 2000, Miller filed a
motion to withdraw his appearance. Christopher Gaal, now the current
Monroe County Prosecuting Attorney, appeared in court on Miller’s behalf and
advised the trial court Miller would be withdrawing his appearance in the case.
The trial court accepted Miller’s withdrawal and appointed a public defender to
represent Adamson.
[11] Fully distilled, Adamson’s argument is that due to Chief Deputy Miller’s brief
representation of him and Prosecutor Gaal’s appearance in court on Miller’s
behalf in late 1999 and early 2000, his trial counsel should have moved to
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 6 of 9 disqualify the Monroe County Prosecutor’s Office in 2008. However, the
record is absent of any evidence demonstrating an actual conflict of interest.
Other than conclusory statements that Chief Deputy Miller learned of
confidential information, Adamson does not offer any specifics or evidence
about what Miller may have learned or how that influenced
Adamson’s decision to plead guilty. Moreover, the record does not
demonstrate Chief Deputy Miller played any role whatsoever in Adamson’s
charges and guilty plea in 2008. As for Prosecutor Gaal, the evidence only
demonstrates he appeared in court on Miller’s behalf to advise the trial court
that Miller would be withdrawing his appearance in the case. And as with
Chief Deputy Miller, Adamson offers zero evidence of an actual conflict of
interest between Prosecutor Gaal and himself.
[12] Adamson has failed to demonstrate an actual conflict of interest between
himself and Chief Deputy Miller or Prosecutor Gaal; therefore, his counsel was
not deficient in failing to move to disqualify the Monroe County Prosecutor’s
Office.
III. Factual Basis [13] Adamson also alleges the trial court failed to establish a factual basis for his
plea of guilty to the habitual offender enhancement. The habitual offender
enhancement statute provides,
(a) Except as otherwise provided in this section, the state may seek to have a person sentenced as a habitual offender for any felony by alleging, on a page separate from the rest of the
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 7 of 9 charging instrument, that the person has accumulated two (2) prior unrelated felony convictions.
(c) A person has accumulated two (2) prior unrelated felony convictions for purposes of this section only if:
(1) the second prior unrelated felony conviction was committed after sentencing for the first prior unrelated felony conviction; and
(2) the offense for which the state seeks to have the person sentenced as a habitual offender was committed after sentencing for the second prior unrelated felony conviction.
Ind. Code § 35-50-2-8 (2005). Adamson alleges the trial court failed to establish
a factual basis for his habitual offender adjudication. He bases this argument
on the guilty plea hearing transcript which omits any sentencing dates for his
prior convictions. Although we agree the sentencing dates are omitted from
Adamson’s factual basis, we disagree that this entitles him to relief on his
petition for post-conviction relief.
[14] In Weatherford v. State, 619 N.E.2d 915, 917-18 (Ind. 1993), our supreme court
held a post-conviction petitioner who challenges the propriety of his
adjudication as an habitual offender may not prevail simply by putting the State
to its proof as though the case were being tried or appealed in the first instance.
Id. Rather, the defendant must demonstrate he is not an habitual offender under
the laws of the State of Indiana. Id. at 918.
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 8 of 9 [15] Thus, it is Adamson’s burden to prove he is not an habitual offender. Here, the
record reveals Adamson admitted to the prior felonies which served as the basis
for the habitual offender determination. Additionally, Adamson has not set
forth any evidence demonstrating that there was anything untrue about the
determination that he is an habitual offender. Thus, Adamson has failed to
meet his burden of proving he is not an habitual offender.
Conclusion [16] The post-conviction court did not err in denying Adamson’s petition for post-
conviction relief.
[17] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 53A01-1608-PC-1912 | February 28, 2018 Page 9 of 9