Jerry L. McClure v. State of Indiana , 2017 Ind. App. LEXIS 80 ( 2017 )

FILED
Feb 24 2017, 11:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Jerry L. McClure Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry L. McClure, February 24, 2017
Appellant-Petitioner, Court of Appeals Case No.
79A02-1501-PC-36
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Thomas H. Busch,
Appellee-Respondent. Judge
Trial Court Cause No.
79D02-1408-PC-9
Najam, Judge.
Statement of the Case
[1] On remand from the Indiana Supreme Court, Jerry L. McClure argues that the
post-conviction court erred when it summarily dismissed his petition for post-
conviction relief. We hold that McClure has not met his burden on appeal to
Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017 Page 1 of 6
demonstrate error. Accordingly, on the merits of McClure’s argument, we
affirm.
Facts and Procedural History
[2] The facts underlying McClure’s convictions were stated by this court during his
direct appeal:
On January 17, 2006, McClure went to a store in Lafayette
armed with a knife with the intent to rob someone. McClure
selected Phyllis Washington as his victim because she was older
and he believed she would be easier to rob than a man or a
younger woman. McClure confronted Washington, stabbed
Washington in an attempt to get her purse, and took her purse.
Washington suffered serious bodily injury as a result of the
attack.
The State charged McClure with attempted murder as a class A
felony, robbery resulting in serious bodily injury as a class A
felony, aggravated battery as a class B felony, battery resulting in
serious bodily injury as a class C felony, theft as a class D felony,
and being an habitual offender. The trial court scheduled a jury
trial for August 1, 2006. On July 26, 2006, McClure pleaded
guilty to robbery resulting in serious bodily injury as a class A
felony and being an habitual offender, and the State dismissed
the remaining charges and agreed not to seek probation
revocation in any pending case.
McClure v. State, No. 79A02-0609-CR-818, 2007 WL 2390175, at *1 (Ind. Ct.
App. Aug. 23, 2007) (footnotes omitted), trans. denied. We affirmed McClure’s
sentence on appeal.
Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017 Page 2 of 6
[3] Thereafter, McClure filed a petition for post-conviction relief.1 According to
McClure, the trial court committed fundamental error when it accepted his
guilty plea on the habitual offender enhancement without a factual basis for that
plea, especially as that factual basis may have related to the identity and
sequence of predicate offenses; and his trial counsel rendered ineffective
assistance when he “allowed McClure to plea[d] guilty to the Habitual Offender
Count.” Appellant’s Br. at 5, 7-8.
[4] McClure proceeded pro se. Accordingly, pursuant to the discretion expressly
afforded to it under Section 9(b) of Indiana Post-Conviction Rule 1, the post-
conviction court ordered the cause submitted upon affidavit. In particular, the
court ordered McClure “to submit [an] affidavit in support of [his] petition for
post-conviction relief within sixty days,” with the State to file a responsive
affidavit within thirty days of McClure’s submission. Appellant’s App. at 4.
[5] McClure never submitted an affidavit in support of his petition for post-
conviction relief. Neither does the record on appeal demonstrate that he
objected to the post-conviction court’s decision to proceed upon affidavit. In
light of McClure’s lack of a supporting affidavit, the State moved for summary
disposition of McClure’s petition. The post-conviction court granted the State’s
motion and denied McClure’s petition for relief.
1
McClure has not included a copy of his petition in his appendix on appeal, but the State does not challenge
McClure’s assertions regarding the issues he raised in his petition.
Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017 Page 3 of 6
[6] McClure initiated an appeal from the post-conviction court’s judgment. After
numerous notices of defects with his appellate filings and his attempts to cure
those defects, upon McClure’s motion this court granted him leave to file a
belated brief. McClure received further notices of defects, but, on November
23, 2015, we granted McClure’s motion to file his brief on appeal. However,
McClure’s defective appendix remained not filed, and, on February 16, 2016,
we dismissed McClure’s appeal in a memorandum decision due to the absence
of a record on appeal for us to review.
[7] McClure filed a petition for transfer of jurisdiction to the Indiana Supreme
Court. The Indiana Supreme Court ordered McClure’s appendix to also be
filed. Subsequently, the court remanded McClure’s appeal to this court for our
review of the merits of his appeal.
Discussion and Decision
[8] McClure appeals the post-conviction court’s summary disposition of his
petition for post-conviction relief. As our supreme court has explained:
An appellate court reviews the grant of a motion for summary
disposition in post-conviction proceedings on appeal in the same
way as a motion for summary judgment. Thus summary
disposition, like summary judgment, is a matter for appellate de
novo determination when the determinative issue is a matter of
law, not fact.
Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008) (citations omitted). In
summary judgment proceedings, the moving party (here, the State) is the party
Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017 Page 4 of 6
that bears the burden to demonstrate that there is no genuine issue of material
fact and that it is entitled to judgment as a matter of law. Hughley v. State, 15
N.E.3d 1000, 1003-04 (Ind. 2014). However, a trial court’s grant of summary
judgment is clothed with a presumption of validity, and the party who lost in
the trial court (here, McClure) has the burden of demonstrating that the grant of
summary judgment was erroneous. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d
1167, 1173 (Ind. Ct. App. 2012), trans. denied.
[9] On appeal, McClure asserts that the post-conviction court erred when it denied
his petition for post-conviction relief for several reasons. Specifically, McClure
asserts (1) that the trial court committed fundamental error when it accepted his
guilty plea on the habitual offender enhancement without a factual basis for that
plea, especially as that factual basis may have related to the identity and
sequence of predicate offenses;2 (2) that his trial counsel rendered ineffective
assistance when he “allowed McClure to plea[d] guilty to the Habitual Offender
Count,” Appellant’s Br. at 5, 7-8, and (3) that the post-conviction court erred
when it summarily disposed of his petition without a hearing.
[10] McClure has not carried his burden on appeal with respect to any of his claims
for relief. The chronological case summary from the post-conviction court
demonstrates that McClure did not submit an affidavit, or any other evidence,
to the post-conviction court pursuant to its order to proceed upon affidavits.
2
McClure states this one issue as two in his brief on appeal.
Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017 Page 5 of 6
Having presented no evidence whatsoever to the post-conviction court pursuant
to its order and in support of his allegations, we cannot say that the post-
conviction court erred when it granted the State’s subsequent motion for
summary disposition of McClure’s petition for post-conviction relief. Thus, we
affirm the post-conviction court’s judgment on the merits of this appeal.
[11] Affirmed.
Bailey, J., and May, J., concur.
Court of Appeals of Indiana | Opinion 79A02-1501-PC-36 | February 24, 2017 Page 6 of 6