Clay R. Firestone v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Nov 08 2012, 9:29 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
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ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
J. MICHAEL SAUER MONIKA PREKOPA TALBOT
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CLAY R. FIRESTONE, )
)
Appellant-Petitioner, )
)
vs. ) No. 32A01-1201-PC-32
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Karen M. Love, Judge
Cause No. 32D03-0606-PC-3
November 8, 2012
OPINION ON REHEARING - NOT FOR PUBLICATION
SHARPNACK, Senior Judge
Clay Firestone has petitioned for rehearing of this Court’s decision in Firestone v.
State, No. 32A01-1201-PC-32 (Ind. Ct. App. Sept. 13, 2012), in which we affirmed the
post-conviction court’s denial of Firestone’s petition for post-conviction relief and
remanded to the lower court to correct Firestone’s sentence by assigning his habitual
offender enhancement to one of his convictions. We grant the petition for rehearing for
the limited purpose of clarifying our reasoning but reaffirm our opinion in all respects.
Firestone contends that our decision contains factual mistakes, and he cites to our
statement in the opinion that he did not “direct us to any testimony or evidence in support
of his claim” that his trial counsel knew about the photo lineup and recorded interview
prior to trial. Slip op. p. 2. In support of his argument, he points to a section from his
appellant’s brief containing citations to discovery responses and exhibits in the appendix
and to statements by counsel and between counsel and the court during trial in the trial
transcript.
To clarify, the statement in the opinion that Firestone had not directed us to any
testimony or evidence in support of his claim was intended to refer to the lack of
testimony or evidence from the post-conviction hearing. Trial counsel did not
acknowledge at the post-conviction hearing that he was actually aware of the contents of
these pieces of evidence, although he may well have been provided these items prior to
trial. In any event, as we stated in our original opinion, counsel’s knowledge is of no
moment because Firestone failed to meet his burden of showing prejudice. See id. at 2-3.
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The remainder of Firestone’s arguments in his petition for rehearing merely
restates the arguments submitted in his appellant’s brief. We determined in our original
opinion that Firestone failed to demonstrate prejudice on his post-conviction claim of
ineffective assistance of trial counsel, and his petition presents nothing that warrants
rehearing.
Subject to the foregoing clarification, our opinion is in all respects affirmed.
NAJAM, J., and PYLE, J., concur.
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