MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Dec 28 2016, 8:58 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Kevin J. Mamon Gregory F. Zoeller Michigan City, Indiana Attorney General of Indiana
Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kevin J. Mamon, December 28, 2016 Appellant-Petitioner, Court of Appeals Case No. 30A05-1511-PC-1942 v. Appeal from the Hancock Circuit Court State of Indiana, The Honorable Richard Culver, Appellee-Respondent. Judge Trial Court Cause No. 30C01-1507-PC-1138
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016 Page 1 of 6 [1] Kevin J. Mamon appeals from the summary denial of his petition for post-
conviction relief (PCR Petition). Mamon, pro se, asserts that the post-
conviction court erred in rejecting his claim of sentencing error.
[2] We affirm.
Facts & Procedural History
[3] Following a jury trial, Mamon was convicted of battery by bodily waste, a Class
D felony, and was subsequently sentenced to three years imprisonment to be
served consecutive to the sentence imposed in a separate cause. On direct
appeal to this court, Mamon challenged the exclusion of evidence, the
reasonableness of the trial court’s delay in sentencing, the trial court’s
jurisdiction in light of his request for removal of his cause to federal court, as
well as the appropriateness of his sentence. With regard to his sentence, this
court held that the trial court did not err in sentencing Mamon to three years
and ordering the sentence to run consecutively to a previously imposed
sentence. See Mamon v. State, No. 30A05-1309-CR-440, slip op. at 6 (Ind. Ct.
App. Mar. 31, 2014), trans. denied.
[4] Mamon filed a PCR Petition on July 29, 2015. In his petition, Mamon asserted
a claim that he received ineffective assistance of counsel based on counsel’s
failure to object or argue on appeal that his sentence violated the consecutive
sentencing statute. Mamon also asserted as free-standing claims of error that
the trial court failed to adequately articulate its reasons for ordering a
consecutive sentence and that the trial court was without authority to impose a
Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016 Page 2 of 6 consecutive sentence under the facts of this case. The State filed a response on
September 21, 2015. On October 5, 2015, Mamon filed a request for summary
judgment with supporting exhibits, asserting that “there are no material facts in
dispute.” Appellant’s Appendix at 18. Mamon’s exhibits consisted of copies of
sentencing orders from the instant cause and the cause to which the current
sentence was to be consecutively served. According to Mamon, his consecutive
sentences for unrelated crimes amounted to fundamental error.
[5] The post-conviction court denied Mamon’s request for relief, concluding that
pursuant to Ind. Code § 35-50-1-2(c), the trial court had discretion to impose a
consecutive sentence and that imposition of a consecutive sentence was
supported by Mamon’s “lengthy criminal record, failed attempts at
rehabilitation and a history of confrontation including fights and arguments
with cell mates and jail officers.” Appellant’s Appendix at 25. The post-
conviction court also noted that Mamon had previously challenged his sentence
on direct appeal and such sentence was affirmed by this court. Mamon now
appeals. Additional facts will be provided as necessary.
Discussion & Decision
[6] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016 Page 3 of 6 order to prevail, the petitioner must demonstrate that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite the post-conviction
court’s conclusion. Id. Although we do not defer to a post-conviction court’s
legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
[7] Post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Conner v.
State, 711 N.E.2d 1238, 1244 (Ind. 1999); see also Ind. Post-Conviction Rule
1(1)(a). Such proceedings are not “super appeals” through which convicted
persons can raise issues that they failed to raise at trial or on direct appeal.
McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002).
[8] Mamon first argues that the post-conviction court prematurely denied his
petition for post-conviction relief and did not afford him an opportunity to
present evidence in support of his claim of ineffective assistance of counsel.
Mamon’s argument is disingenuous given that he is the party who filed the
motion for summary judgment and asserted that there were no genuine issues of
material fact. See Post-Conviction Rule 1(4)(g) (providing that a post-
conviction court “may grant a motion by either party for summary disposition
of the petition when it appears . . . that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law”).
Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016 Page 4 of 6 [9] The balance of Mamon’s appellate brief focuses on his various challenges to the
trial court’s exercise of discretion in imposing a consecutive sentence. Some of
his arguments are presented as free-standing claims of error and others are
presented under the guise of ineffective assistance.1 We begin with the former.
As a general rule, “most free-standing claims of error are not available in a
postconviction proceeding because of the doctrines of waiver and res judicata.”
Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001). If an issue was known
and available, but not raised on direct appeal, it is waived. Id. at 597. If it was
raised on appeal, but decided adversely, it is res judicata. Id.
[10] To the extent Mamon challenges the trial court’s exercise of discretion in
identifying and weighing aggravating and mitigating circumstances, such issue
is waived. Likewise, Mamon cannot now challenge what he perceives to be an
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Dec 28 2016, 8:58 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Kevin J. Mamon Gregory F. Zoeller Michigan City, Indiana Attorney General of Indiana
Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kevin J. Mamon, December 28, 2016 Appellant-Petitioner, Court of Appeals Case No. 30A05-1511-PC-1942 v. Appeal from the Hancock Circuit Court State of Indiana, The Honorable Richard Culver, Appellee-Respondent. Judge Trial Court Cause No. 30C01-1507-PC-1138
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016 Page 1 of 6 [1] Kevin J. Mamon appeals from the summary denial of his petition for post-
conviction relief (PCR Petition). Mamon, pro se, asserts that the post-
conviction court erred in rejecting his claim of sentencing error.
[2] We affirm.
Facts & Procedural History
[3] Following a jury trial, Mamon was convicted of battery by bodily waste, a Class
D felony, and was subsequently sentenced to three years imprisonment to be
served consecutive to the sentence imposed in a separate cause. On direct
appeal to this court, Mamon challenged the exclusion of evidence, the
reasonableness of the trial court’s delay in sentencing, the trial court’s
jurisdiction in light of his request for removal of his cause to federal court, as
well as the appropriateness of his sentence. With regard to his sentence, this
court held that the trial court did not err in sentencing Mamon to three years
and ordering the sentence to run consecutively to a previously imposed
sentence. See Mamon v. State, No. 30A05-1309-CR-440, slip op. at 6 (Ind. Ct.
App. Mar. 31, 2014), trans. denied.
[4] Mamon filed a PCR Petition on July 29, 2015. In his petition, Mamon asserted
a claim that he received ineffective assistance of counsel based on counsel’s
failure to object or argue on appeal that his sentence violated the consecutive
sentencing statute. Mamon also asserted as free-standing claims of error that
the trial court failed to adequately articulate its reasons for ordering a
consecutive sentence and that the trial court was without authority to impose a
Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016 Page 2 of 6 consecutive sentence under the facts of this case. The State filed a response on
September 21, 2015. On October 5, 2015, Mamon filed a request for summary
judgment with supporting exhibits, asserting that “there are no material facts in
dispute.” Appellant’s Appendix at 18. Mamon’s exhibits consisted of copies of
sentencing orders from the instant cause and the cause to which the current
sentence was to be consecutively served. According to Mamon, his consecutive
sentences for unrelated crimes amounted to fundamental error.
[5] The post-conviction court denied Mamon’s request for relief, concluding that
pursuant to Ind. Code § 35-50-1-2(c), the trial court had discretion to impose a
consecutive sentence and that imposition of a consecutive sentence was
supported by Mamon’s “lengthy criminal record, failed attempts at
rehabilitation and a history of confrontation including fights and arguments
with cell mates and jail officers.” Appellant’s Appendix at 25. The post-
conviction court also noted that Mamon had previously challenged his sentence
on direct appeal and such sentence was affirmed by this court. Mamon now
appeals. Additional facts will be provided as necessary.
Discussion & Decision
[6] In a post-conviction proceeding, the petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Bethea v. State, 983
N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In
Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016 Page 3 of 6 order to prevail, the petitioner must demonstrate that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite the post-conviction
court’s conclusion. Id. Although we do not defer to a post-conviction court’s
legal conclusions, we will reverse its findings and judgment only upon a
showing of clear error, i.e., “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729
N.E.2d 102, 106 (Ind. 2000)).
[7] Post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal. Conner v.
State, 711 N.E.2d 1238, 1244 (Ind. 1999); see also Ind. Post-Conviction Rule
1(1)(a). Such proceedings are not “super appeals” through which convicted
persons can raise issues that they failed to raise at trial or on direct appeal.
McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002).
[8] Mamon first argues that the post-conviction court prematurely denied his
petition for post-conviction relief and did not afford him an opportunity to
present evidence in support of his claim of ineffective assistance of counsel.
Mamon’s argument is disingenuous given that he is the party who filed the
motion for summary judgment and asserted that there were no genuine issues of
material fact. See Post-Conviction Rule 1(4)(g) (providing that a post-
conviction court “may grant a motion by either party for summary disposition
of the petition when it appears . . . that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law”).
Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016 Page 4 of 6 [9] The balance of Mamon’s appellate brief focuses on his various challenges to the
trial court’s exercise of discretion in imposing a consecutive sentence. Some of
his arguments are presented as free-standing claims of error and others are
presented under the guise of ineffective assistance.1 We begin with the former.
As a general rule, “most free-standing claims of error are not available in a
postconviction proceeding because of the doctrines of waiver and res judicata.”
Timberlake v. State, 753 N.E.2d 591, 597-98 (Ind. 2001). If an issue was known
and available, but not raised on direct appeal, it is waived. Id. at 597. If it was
raised on appeal, but decided adversely, it is res judicata. Id.
[10] To the extent Mamon challenges the trial court’s exercise of discretion in
identifying and weighing aggravating and mitigating circumstances, such issue
is waived. Likewise, Mamon cannot now challenge what he perceives to be an
inadequate sentencing statement as this argument was known and available for
direct appeal, but not presented. Mamon also argues that the trial court did not
give a “fair consideration” to all of the circumstances. Appellant’s Brief at 4.
This issue was implicitly decided adversely to Mamon in this court’s decision
on direct appeal that Mamon’s sentence (including the consecutive aspect
thereof) was not inappropriate. See Mamon, No. 30A05-1309-CR-440, slip op. at
6.
1 After the State filed its Appellee’s Brief, Mamon filed a “Notice of Appellant’s Reply Statement” with this court asserting that he “clearly raised . . . claims pertaining to the effectiveness of appellate counsel.”
Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016 Page 5 of 6 [11] To the extent Mamon’s arguments are framed in terms of ineffective assistance
of counsel, his claims fail. A petitioner will prevail on a claim of ineffective
assistance of counsel only upon a showing that counsel’s performance fell
below an objective standard of reasonableness and that the deficient
performance prejudiced the petitioner. Bethea, 983 N.E.2d at 1138. Here,
Mamon moved for summary judgment and included only sentencing orders in
support thereof, which provide nothing from which to gauge his trial counsel’s
performance or any resulting prejudice to Mamon. Mamon presented no other
evidence to satisfy his burden of establishing the two prongs of an ineffective
assistance claim. The post-conviction court did not err in denying Mamon’s
requested relief.
[12] Judgement affirmed.
[13] Riley, J. and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 30A05-1511-PC-1942 | December 28, 2016 Page 6 of 6