Kevin Jemar Mamon v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 17, 2018
• Docket: 30A01-1602-PC-435
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018 Page 1 of 8 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.”).

Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018 Page 2 of 8 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.

Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018 Page 3 of 8 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.

Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018 Page 4 of 8 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

Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018 Page 5 of 8 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

Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018 Page 6 of 8 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.

Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018 Page 7 of 8 [13] Affirmed.

Kirsch, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 30A01-1602-PC-435 | January 17, 2018 Page 8 of 8