Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be 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. FILED Jan 30 2013, 8:49 am
CLERK of the supreme court, court of appeals and tax court
APPELLANT PRO SE:
JOHN D. ROGERS Pendleton, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOHN D. ROGERS, ) ) Appellant-Defendant, ) ) vs. ) No. 88A01-1208-PC-373 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE WASHINGTON SUPERIOR COURT The Honorable Frank E. Newkirk, Jr., Judge Cause No. 88D01-0910-PC-563
January 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge Case Summary
John D. Rogers, pro se, appeals the denial of his petition for post-conviction
relief. He argues that his trial counsel was ineffective for failing to pursue his discharge
pursuant to Indiana Criminal Rule 4(C) and that his guilty plea was unknowing and
involuntary because he would not have pled guilty had he known that he was entitled to
discharge pursuant to Criminal Rule 4(C). Finding that the post-conviction court
properly denied relief, we affirm.
Facts and Procedural History
On July 12, 2007, the State charged Rogers with two counts of Class B felony
burglary, two counts of Class D felony receiving stolen property, two counts of Class D
felony theft, and one count of resisting law enforcement in Washington Superior Court.
The State also alleged that Rogers was a habitual offender. Rogers was incarcerated in
Clark County at the time, which complicated transportation and other issues related to
this case. Although Rogers was represented by attorney Mark Clark, on July 15, 2009,
Rogers filed a pro se Indiana Criminal Rule 4(C) motion for discharge in this case.
Criminal Rule 4(C) provides:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be
2 reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.
When Attorney Clark reviewed Rogers’ case, looked at his CCS, and applied Criminal
Rule 4(C), he concluded that because of the number of times he continued Rogers’ case,
Rogers was not entitled to discharge pursuant to Criminal Rule 4(C). Tr. p. 106.
Accordingly, Attorney Clark could not “in good faith” file a motion for discharge. Id.
Approximately two weeks later, on July 27, 2009, Rogers, represented by
Attorney Clark, pled guilty to two counts of Class B felony burglary in this case; the
remaining charges and the habitual-offender count were dismissed. According to the plea
agreement, Rogers received a twenty-year sentence, including the right to petition for
modification of his sentence after five years. Id. at 118; Ex. 7. In addition, Rogers’
sentence and any sentence Rogers received in Clark and Floyd counties with regard to the
events of July 9, 2007, were to run concurrently. Ex. 7.
Rogers filed a pro se petition for post-conviction relief in October 2009, which he
amended in May 2011, alleging that Attorney Clark was ineffective for failing to pursue
his discharge pursuant to Criminal Rule 4(C) and that his guilty plea was unknowing and
involuntary because he would not have pled guilty had he known that he was entitled to
discharge pursuant to Criminal Rule 4(C).1 At his post-conviction relief hearing, Rogers
presented the testimony of Attorney Clark, case law on Criminal Rule 4(C), the CCS
from his criminal case, his plea agreement, and the transcript from his guilty-plea
1 Rogers did not include copies of either petition in the record on appeal. In fact, Rogers did not submit an appendix. See Ind. Appellate Rule 50(B) (noting that the appendix must contain copies of the “Clerk’s Record,” which is defined in Appellate Rule 2(E) as “the Record maintained by the clerk of the trial court . . . and shall consist of the Chronological Case Summary (CCS) and all papers, pleadings, documents, orders, judgments, and other materials filed in the trial court . . . listed in the CCS.”). 3 hearing. Attorney Clark testified that he had reviewed Rogers’ CCS and determined that
he had asked for too many continuances to file a motion for Rogers’ discharge. Tr. p.
106. Attorney Clark also explained that Rogers had wanted to resolve his Clark County
charges first; as a result, “part of the case strategy by both [Attorney Clark and Rogers
was] to delay resolution in Washington County until a resolution was reached in Clark
County[.]” Id. at 122; see also id. at 127. In addition, the transcript from Rogers’ guilty-
plea hearing showed that by pleading guilty, Rogers waived his “right to a public speedy
jury trial.” Ex. 6, p. 5.
The post-conviction court entered findings and conclusions denying Rogers relief.
Rogers now appeals.
Discussion and Decision
The State did not file an appellee’s brief. The obligation of controverting
arguments presented by the appellant properly remains with the State. Matekyo v. State,
901 N.E.2d 554, 557 (Ind. Ct. App. 2009), trans. denied. Where, as here, the appellee
fails to submit a brief, the appellant may prevail by making a prima facie case of error,
i.e., an error at first sight or appearance. Id. Still, we must correctly apply the law to the
facts of the record to determine if reversal is required. Id.
Rogers contends that the post-conviction court erred in denying his petition for
post-conviction relief. Post-conviction proceedings are civil proceedings that provide
defendants the opportunity to raise issues not known or available at the time of the
original trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007),
reh’g denied. “In post-conviction proceedings, the defendant bears the burden of proof
4 by a preponderance of the evidence.” Id. When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a negative
judgment. Hampton v. State, 961 N.E.2d 480, 492 (Ind. 2012). Thus, the defendant must
convince us that the evidence as a whole leads unerringly and unmistakably to a decision
opposite that reached by the post-conviction court. Id. We review the post-conviction
court’s factual findings for clear error but do not defer to its conclusions of law. Id.
I. Ineffective Assistance of Counsel
Rogers first contends that Attorney Clark was ineffective for failing to pursue his
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be 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. FILED Jan 30 2013, 8:49 am
CLERK of the supreme court, court of appeals and tax court
APPELLANT PRO SE:
JOHN D. ROGERS Pendleton, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOHN D. ROGERS, ) ) Appellant-Defendant, ) ) vs. ) No. 88A01-1208-PC-373 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE WASHINGTON SUPERIOR COURT The Honorable Frank E. Newkirk, Jr., Judge Cause No. 88D01-0910-PC-563
January 30, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge Case Summary
John D. Rogers, pro se, appeals the denial of his petition for post-conviction
relief. He argues that his trial counsel was ineffective for failing to pursue his discharge
pursuant to Indiana Criminal Rule 4(C) and that his guilty plea was unknowing and
involuntary because he would not have pled guilty had he known that he was entitled to
discharge pursuant to Criminal Rule 4(C). Finding that the post-conviction court
properly denied relief, we affirm.
Facts and Procedural History
On July 12, 2007, the State charged Rogers with two counts of Class B felony
burglary, two counts of Class D felony receiving stolen property, two counts of Class D
felony theft, and one count of resisting law enforcement in Washington Superior Court.
The State also alleged that Rogers was a habitual offender. Rogers was incarcerated in
Clark County at the time, which complicated transportation and other issues related to
this case. Although Rogers was represented by attorney Mark Clark, on July 15, 2009,
Rogers filed a pro se Indiana Criminal Rule 4(C) motion for discharge in this case.
Criminal Rule 4(C) provides:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be
2 reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.
When Attorney Clark reviewed Rogers’ case, looked at his CCS, and applied Criminal
Rule 4(C), he concluded that because of the number of times he continued Rogers’ case,
Rogers was not entitled to discharge pursuant to Criminal Rule 4(C). Tr. p. 106.
Accordingly, Attorney Clark could not “in good faith” file a motion for discharge. Id.
Approximately two weeks later, on July 27, 2009, Rogers, represented by
Attorney Clark, pled guilty to two counts of Class B felony burglary in this case; the
remaining charges and the habitual-offender count were dismissed. According to the plea
agreement, Rogers received a twenty-year sentence, including the right to petition for
modification of his sentence after five years. Id. at 118; Ex. 7. In addition, Rogers’
sentence and any sentence Rogers received in Clark and Floyd counties with regard to the
events of July 9, 2007, were to run concurrently. Ex. 7.
Rogers filed a pro se petition for post-conviction relief in October 2009, which he
amended in May 2011, alleging that Attorney Clark was ineffective for failing to pursue
his discharge pursuant to Criminal Rule 4(C) and that his guilty plea was unknowing and
involuntary because he would not have pled guilty had he known that he was entitled to
discharge pursuant to Criminal Rule 4(C).1 At his post-conviction relief hearing, Rogers
presented the testimony of Attorney Clark, case law on Criminal Rule 4(C), the CCS
from his criminal case, his plea agreement, and the transcript from his guilty-plea
1 Rogers did not include copies of either petition in the record on appeal. In fact, Rogers did not submit an appendix. See Ind. Appellate Rule 50(B) (noting that the appendix must contain copies of the “Clerk’s Record,” which is defined in Appellate Rule 2(E) as “the Record maintained by the clerk of the trial court . . . and shall consist of the Chronological Case Summary (CCS) and all papers, pleadings, documents, orders, judgments, and other materials filed in the trial court . . . listed in the CCS.”). 3 hearing. Attorney Clark testified that he had reviewed Rogers’ CCS and determined that
he had asked for too many continuances to file a motion for Rogers’ discharge. Tr. p.
106. Attorney Clark also explained that Rogers had wanted to resolve his Clark County
charges first; as a result, “part of the case strategy by both [Attorney Clark and Rogers
was] to delay resolution in Washington County until a resolution was reached in Clark
County[.]” Id. at 122; see also id. at 127. In addition, the transcript from Rogers’ guilty-
plea hearing showed that by pleading guilty, Rogers waived his “right to a public speedy
jury trial.” Ex. 6, p. 5.
The post-conviction court entered findings and conclusions denying Rogers relief.
Rogers now appeals.
Discussion and Decision
The State did not file an appellee’s brief. The obligation of controverting
arguments presented by the appellant properly remains with the State. Matekyo v. State,
901 N.E.2d 554, 557 (Ind. Ct. App. 2009), trans. denied. Where, as here, the appellee
fails to submit a brief, the appellant may prevail by making a prima facie case of error,
i.e., an error at first sight or appearance. Id. Still, we must correctly apply the law to the
facts of the record to determine if reversal is required. Id.
Rogers contends that the post-conviction court erred in denying his petition for
post-conviction relief. Post-conviction proceedings are civil proceedings that provide
defendants the opportunity to raise issues not known or available at the time of the
original trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007),
reh’g denied. “In post-conviction proceedings, the defendant bears the burden of proof
4 by a preponderance of the evidence.” Id. When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a negative
judgment. Hampton v. State, 961 N.E.2d 480, 492 (Ind. 2012). Thus, the defendant must
convince us that the evidence as a whole leads unerringly and unmistakably to a decision
opposite that reached by the post-conviction court. Id. We review the post-conviction
court’s factual findings for clear error but do not defer to its conclusions of law. Id.
I. Ineffective Assistance of Counsel
Rogers first contends that Attorney Clark was ineffective for failing to pursue his
discharge pursuant to Criminal Rule 4(C). Ineffective assistance of counsel claims are
evaluated under the standard of Strickland v. Washington, 466 U.S. 668 (1984). To
prevail on a claim of ineffective assistance of counsel, a petitioner must show both
deficient performance and resulting prejudice. Williams v. State, 706 N.E.2d 149, 154
(Ind. 1999). A deficient performance is a performance which falls below an objective
standard of reasonableness. Id. Prejudice exists when a claimant shows “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
Here, Rogers elected to plead guilty. A plea of guilty constitutes a waiver of the
right to trial. Gosnell v. State, 439 N.E.2d 1153, 1155 (Ind. 1982). “The right to have a
trial expeditiously cannot exist or be enforced apart from the right to trial, and any claim
of a denial thereof is waived upon a plea of guilty.” Id. Accordingly, where a defendant
waives his right to have a trial, he thereby waives any right to a speedy trial. Wright v.
State, 496 N.E.2d 60, 61 (Ind. 1986). A defendant cannot simultaneously plead guilty
5 and pursue an alleged violation of his Criminal Rule 4 rights on appeal or through a post-
conviction relief proceeding. Cornelious v. State, 846 N.E.2d 354, 357 (Ind. Ct. App.
2006), trans. denied; Branham v. State, 813 N.E.2d 809, 811 (Ind. Ct. App. 2004); see
also Alvey v. State, 911 N.E.2d 1248 (Ind. 2009) (holding that a defendant who pleads
guilty to an offense is not entitled to challenge the denial of any pretrial motions).
Accordingly, Rogers’ decision to plead guilty foreclosed Attorney Clark’s ability to
continue to pursue Rogers’ discharge pursuant to Criminal Rule 4—assuming Rogers was
eligible, and the post-conviction court found that he was not. Rogers has not
demonstrated deficient performance by counsel.
II. Voluntariness of Plea
Rogers next contends that his guilty plea was unknowing and involuntary.
Specifically, he argues that he “would not have pled guilty had he known he was eligible
for the Criminal 4(C) defense.” Appellant’s Br. p. 9.
“A guilty plea entered after the trial court has reviewed the various rights that a
defendant is waiving and has made the inquiries called for by statute is unlikely to be
found wanting in a collateral attack.” Cornelious, 846 N.E.2d at 357 (citing State v.
Moore, 678 N.E.2d 1258, 1265 (Ind. 1997), reh’g denied). “‘However, defendants who
can show that they were coerced or misled into pleading guilty by the judge, prosecutor
or defense counsel will present colorable claims for relief.’” Id. (quoting Moore, 678
N.E.2d at 1266). In assessing the voluntariness of a plea, we review all of the evidence
before the post-conviction court, including testimony given at the post-conviction
6 hearing, the transcript of the petitioner’s original sentencing, and any plea agreements or
other exhibits that are a part of the record. Id. at 357-58.
Rogers’ claim that he was unaware of his Criminal Rule 4(C) rights is
disingenuous at best. On July 15, 2009, Rogers filed a pro se Criminal Rule 4(C) motion
for discharge. Attorney Clark testified at the post-conviction hearing that he discussed
Rogers’ Criminal Rule 4(C) rights with him, but he could not in good faith file such a
motion. Approximately two weeks later, on July 27, 2009, Rogers, represented by
Attorney Clark, pled guilty to two counts of Class B felony burglary. At the guilty-plea
hearing, Rogers was advised that he would be giving up his right to trial, and more
specifically his right to a speedy trial, if he pled guilty. Rogers elected to plead guilty.
Notably, there was no promise to Rogers that he could continue to challenge his Criminal
Rule 4(C) rights if he pled guilty. The post-conviction court properly denied Rogers’
petition for post-conviction relief on this ground.
Affirmed.
BAILEY, J., and BROWN, J., concur.