Ronald Mitchell v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 19, 2014
• Docket: 79A02-1308-PC-708
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 19 2014, 10:05 am 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.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

RONALD MITCHELL GREGORY F. ZOELLER Michigan City, Indiana Attorney General of Indiana

J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

RONALD MITCHELL, ) ) Appellant-Petitioner, ) ) vs. ) No. 79A02-1308-PC-708 ) STATE OF INDIANA, ) ) Appellee-Respondent. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Thomas H. Busch, Judge Cause No. 79D02-1207-PC-10

November 19, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, JUDGE Ronald Mitchell appeals the denial of his successive petition for post-conviction

relief. We affirm.

FACTS AND PROCEDURAL HISTORY

On October 30, 2002, the trial court convicted Mitchell of Class A felony child

molesting, Class C felony child molesting, and Class D felony intimidation. The trial court

sentenced Mitchell to an aggregate sentence of fifty years. Mitchell appealed his convictions,

and we affirmed the judgment of the trial court. Mitchell v. State, 79A05-0212-CR-618 (Ind.

Ct. App. July 3, 2003).

On June 29, 2004, Mitchell filed a petition for post-conviction relief alleging

misconduct by the prosecutor during his trial and ineffective assistance of trial counsel and

appellate counsel. His petition was denied, and we affirmed that denial. Mitchell v. State,

79A02-0708-PC-675 (Ind. Ct. App. May 28, 2008), trans. denied.

Mitchell requested permission to file successive petitions for post-conviction relief on

June 17, 2011; April 27, 2012; and October 23, 2012; all of which were denied by our Court.

Mitchell filed another petition for permission to file a successive petition for post-conviction

relief on July 2, 2012, which we approved only on the issue of whether he received

ineffective assistance of counsel in deciding whether to accept or reject a plea agreement

offered by the State. Mitchell presented his petition before the trial court, and on July 31,

2013, the trial court denied Mitchell’s successive petition for post-conviction relief.

DISCUSSION AND DECISION

Post-conviction proceedings afford petitioners a limited opportunity to raise issues

2 unavailable or unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443

(Ind. 2002). As post-conviction proceedings are civil in nature, the petitioner must prove his

grounds for relief by a preponderance of the evidence. Id. A party appealing a negative post-

conviction judgment must establish that the evidence is without conflict and, as a whole,

unmistakably and unerringly points to a conclusion contrary to that reached by the post-

conviction court. Id. Where, as here, the post-conviction court makes findings of fact and

conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we do not defer to

the court’s legal conclusions, but “the 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) (citation

omitted), cert. denied, 530 U.S. 830 (2001).

A petitioner is entitled to only one post-conviction opportunity to raise the issue of

ineffective assistance of counsel. Daniels v. State, 741 N.E.2d 1177, 1185 (Ind. 2001).

Claims of ineffective assistance already decided adversely to the petition are barred in

successive post-conviction proceedings as res judicata, which prevents the re-litigation of

issues. Matheney v. State, 834 N.E.2d 658, 662 (Ind. 2005). The doctrine of res judicata

does not bar an action if “the initial decision was clearly erroneous and would work manifest

injustice,” Wallace v. State, 820 N.E.2d 1261, 1263 (Ind. 2005), or if there is newly-

discovered evidence. Daniels, 741 N.E.2d at 1185.

In Mitchell’s earlier request for post-conviction relief, he alleged his trial counsel was

ineffective for:

3 (1) failing to adequately investigate the facts of his case; (2) failing to present evidence that Mitchell tested negative for gonorrhea; (3) failing to determine that Mitchell was mentally retarded and unable to assist in his defense; (4) failing to locate, interview, or depose key witnesses; (5) failing to timely file a defense witness list; (6) failing to object to the violation of his physician- patient privilege; and (7) coercing Mitchell into waiving his right to a jury trial.

Mitchell, 79A02-0708-PC-675, slip op. at 2. We affirmed the denial of Mitchell’s petition

regarding these issues, and thus they are not available for appeal in the instant action under

the doctrine of res judicata. See Matheney, 834 N.E.2d at 662 (claims of ineffective

assistance of counsel already decided in earlier post-conviction appeal are barred in

successive post-conviction proceedings as res judicata).

We granted Mitchell permission to file a successive petition for post-conviction relief

regarding his allegation that he was denied effective assistance of counsel because he was not

properly apprised of a plea deal. The trial court denied Mitchell’s successive petition for

post-conviction relief, finding: “No credible evidence has been presented that the Stat[e]

tendered a plea offer involving a thirty (30) year sentence.” (Trial Court Findings and

Conclusions1 at 3.) We find no error therein.

Mitchell asserted his trial counsel was ineffective for failing to advise him of a

possible plea agreement. However, the State disputes that any such plea agreement ever

existed. Mitchell does not cite any evidence, besides his own statement, indicating such a

plea agreement existed. As Mitchell has not demonstrated there was a plea agreement about

which his trial counsel failed to advise him, Mitchell has not demonstrated counsel’s

1 Mitchell did not provide a copy of the trial court’s order in his appendix. Instead, he included the order at the end of his brief. Therefore, we reference the page numbers based on the page indicated in the order. 4 assistance was ineffective. See Davidson, 763 N.E.2d at 443 (party appealing negative

judgment must establish unconflicted evidence unmistakably and unerringly points to

conclusion contrary to judgment). Accordingly, we affirm.

Affirmed.

VAIDIK, C.J., and FRIEDLANDER, J., concur.