Donald E. Ware v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 26 2018, 9:40 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
Donald E. Ware Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald E. Ware, June 26, 2018
Appellant-Petitioner, Court of Appeals Case No.
49A02-1710-PC-2499
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Respondent. Marc T. Rothenberg, Judge
The Honorable
Amy J. Barbar, Magistrate
Trial Court Cause No.
49G02-0508-PC-130877
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018 Page 1 of 9
[1] Donald E. Ware (“Ware”) appeals the denial of his successive petition for post-
conviction relief and raises the following restated issue for our review: whether
the post-conviction court erred when it summarily denied his successive petition
for post-conviction relief without a hearing, finding that Ware had previously
been afforded opportunities to litigate the issues he raised in his successive
petition for post-conviction relief and did not raise any new issues of material of
fact in his successive petition for post-conviction relief.
[2] We affirm.
Facts and Procedural History
[3] The facts supporting Ware’s convictions as set forth by this court in his direct
appeal are as follows:
On July 24, 2005, a group of teenage boys gathered in an area
near the intersection of Rockville Road and Girls School Road in
Marion County for the purpose of throwing eggs at passing cars.
At one point, the boys struck Lisa Baker’s car. Baker stopped
and began yelling that she was going to call the police. The boys
then struck a pickup truck, which was later determined to be
driven by Ware. Ware stopped, exited his truck, and yelled at
the boys. He then returned to his truck and drove to where Baker
had stopped her car. While talking to Baker, Ware made racially
derogatory comments about the boys and told Baker that he had
a rifle and was going to get the boys. Ware asked Baker where
the boys were, and after Baker pointed in the general direction,
Ware drove after the boys. While the boys were running from
Ware’s truck, two shots were fired, killing Brandon Dunson
(“Dunson”) and wounding Michael Dyer (“Dyer”).
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018 Page 2 of 9
Tracy Nash was the first police officer to arrive on the scene.
Officer Nash was unaware that there had been a shooting, and
was on the scene to investigate reports of boys throwing eggs at
passing vehicles. He noticed Ware’s truck because it was
traveling at a high rate of speed and saw it pull into a public
storage facility’s parking lot. When Officer Nash pulled in
behind the truck, Ware exited his truck and approached the
driver’s side of Officer Nash’s vehicle. Ware told Officer Nash
that he had been struck in the head by an egg, and told Officer
Nash that the boys who had thrown the eggs were running
behind the public storage facility. Officer Nash told Ware not to
leave, and went to look for the boys. When Officer Nash
returned to the parking lot after an unsuccessful search for the
boys, Ware had left the scene.
Dunson’s friends who were running with him were afraid of
being caught and did not stop when Dunson was shot. Later that
night, one of Dunson’s friends who had not participated in the
egging became concerned about Dunson and went to look for
him. He found Dunson’s body in the grass near the public
storage facility and called the police. After learning that a
shooting had occurred, the police turned their attention to
identifying the man with whom Baker and Officer Nash spoke.
Baker was shown a photographic array and initially identified,
with ninety percent confidence, Chester Williams as the man
with whom she spoke. After being shown a second photographic
array, Baker identified Williams with one hundred percent
confidence. However, further investigation ruled out Williams as
a suspect. A few days later, the police received an anonymous
phone call indicating that a man named “Donny” was
responsible for shooting Dunson, and that he lived in Avon,
Indiana, and drove a red pickup truck. Police then began
surveillance of Ware’s house and determined that Ware was
“Donny.” Officers then showed a photographic array to Officer
Nash, who identified Ware as the man with whom he spoke the
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018 Page 3 of 9
night of the shooting. The police then applied for a warrant to
search Ware’s house and vehicle.
....
After receiving the search warrant, officers found eggshells and
residue in and on Ware’s truck, and found roughly forty-nine
grams of marijuana in Ware’s residence. No gun was recovered
during this search or throughout the remainder of the
investigation. Officers took [Terri] Eberwein, who was at the
residence at the time of the search, to the police station for
questioning. Eberwein told officers that upon returning home the
night of the shooting, Ware had told her he had been egged and
had “said something about, you know shooting but he didn’t say
at what or anything,” and that he said “he fired some rounds or
some shots.” State’s Ex. 113. The next day, officers arrested
Ware without a warrant and took him in for questioning. Ware
admitted being on the scene that night and speaking to Baker and
Officer Nash, but denied shooting at the boys or having a gun.
Prior to trial, Ware filed a motion to suppress the evidence
obtained as a result of the search and arrest, arguing that
probable cause supported neither. After a hearing, the trial court
denied Ware’s motion. At trial, the boys who had participated in
the egging testified. All the boys testified that they saw a red or
dark-colored pickup truck chasing them. Three of the boys
testified that at some point while they were leaving the scene they
saw a truck driving around in the area with someone standing in
the truck’s bed. The jury also heard the testimony of Officer
Nash and Baker, who both identified Ware as the person with
whom they spoke that night. Eberwein also testified, and
admitted telling officers that Ware had mentioned shooting a gun
the night of the incident, but said that when she gave her
statement to police, she had been intimidated, was under the
influence of prescription and illegal drugs, and had falsified some
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018 Page 4 of 9
information in her statement. The jury found Ware guilty of
murder, battery, and two counts of criminal recklessness.
Ware filed a motion for the trial court to enter alternative final
judgment and a motion for a new trial. The trial court denied
both motions at the beginning of the sentencing hearing. The
trial court sentenced Ware to sixty years for murder, six years for
battery, and two years for each of the criminal recklessness
counts. The trial court then ordered that all sentences be served
consecutively based on the number of victims, for an aggregate
sentence of seventy years.
Ware v. State, 859 N.E.2d 708, 713-15 (Ind. Ct. App. 2007), trans. denied. Ware
filed a direct appeal and raised issues regarding the issuance of the search
warrant, sufficiency of the evidence, admission of evidence, and the
appropriateness of his sentence. Id. at 713. His convictions and sentence were
affirmed, and Ware sought transfer, which was denied. Id. at 726.
[4] On June 29, 2007, Ware filed a petition for post-conviction relief in which he
argued that trial counsel was ineffective for failing to inform him “of any plea
offers, negotiations, etc.” Appellant’s App. Vol. II at 60, 62. Ware subsequently
withdrew the petition, and the post-conviction court ordered it dismissed
without prejudice. Id. at 10, 142. On January 11, 2011, Ware filed a second
petition for post-conviction relief. Id. at 70. In support of his request for
subpoenas concerning this petition, Ware claimed that the witnesses he wished
to subpoena would testify that his trial counsel failed to convey a plea offer. Id.
at 142. Ware again moved to withdraw his petition, and the post-conviction
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018 Page 5 of 9
court dismissed it without prejudice. Id. at 12. On April 10, 2012, Ware filed a
third petition for post-conviction relief. Id. at 12-13, 143. In this third petition,
Ware alleged that he received ineffective assistance of both his trial and
appellate attorneys, but abandoned his argument that his trial counsel was
ineffective for failing to convey a plea offer to him. Id. at 99-105. A hearing
was held on the petition, and the post-conviction court later denied Ware’s
petition for relief. Id. at 112. The denial of post-conviction relief was affirmed
by this court, and the Indiana Supreme Court denied transfer. Ware v. State,
No. 49A02-1304-PC-370 (Ind. Ct. App. Jan. 21, 2014).
[5] On September 2, 2016, this court granted Ware permission to file a successive
petition for post-conviction relief. In his successive petition, Ware again alleged
his previously-asserted argument that his trial counsel failed to convey to him a
plea offer from the State. Id. at 127-32. The State filed a motion for summary
disposition of Ware’s successive petition for post-conviction relief, and the post-
conviction court summarily disposed of his successive petition pursuant to
Indiana Post-Conviction Rule 4(g) because the issue of the alleged plea offer
was known and available and, in fact, was raised in Ware’s prior post-
conviction petitions. Id. at 140-44. Ware now appeals.
Discussion and Decision
[6] Post-conviction proceedings do not afford the petitioner an opportunity for a
super appeal, but rather, provide the opportunity to raise issues that were
unknown or unavailable at the time of the original trial or the direct appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018 Page 6 of 9
Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164
(2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,
cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct
appeal and provide only a narrow remedy for subsequent collateral challenges
to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-
conviction relief bears the burden of proving the grounds by a preponderance of
the evidence. Ind. Post-Conviction Rule 1(5).
[7] When a petitioner appeals a denial of post-conviction relief, he appeals a
negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),
trans. denied. The petitioner must establish that the evidence as a whole
unmistakably and unerringly leads to a conclusion contrary to that of the post-
conviction court. Id. We will disturb a post-conviction court’s decision as
being contrary to law only where the evidence is without conflict and leads to
but one conclusion, and the post-conviction court has reached the opposite
conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.
denied. If an issue was known and available, but not raised on direct appeal, it
is waived, and if it was raised on appeal, but decided adversely, it is res
judicata. White v. State, 971 N.E.2d 203, 206 (Ind. Ct. App. 2012) (citing
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839
(2002)), trans. denied. We accept the post-conviction court’s findings of fact
unless they are clearly erroneous, and no deference is given to its conclusions of
law. Fisher, 878 N.E.2d at 463.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018 Page 7 of 9
[8] Here, in his first petition for post-conviction relief, Ware argued that his trial
counsel was ineffective for failing to convey to him an alleged plea offer from
the State. Appellant’s App. Vol. II at 60-62. During the proceedings regarding his
second post-conviction relief petition, Ware also indicated to the post-
conviction court that he possessed knowledge of the alleged issue when he
requested subpoenas. Id. at 70. Therefore, contrary to Ware’s contention, his
claim of ineffective assistance of trial counsel due to failure to convey a plea
offer, which he raises in his successive petition for post-conviction relief, was
known, and available, in his initial post-conviction proceedings. Additionally,
in his third petition for post-conviction relief, Ware raised issues of ineffective
assistance of trial counsel, but did not include the failure to convey a plea offer
as one of the grounds of ineffectiveness. Id. at 99-105.
[9] “Proper successive petitions contain claims that by their nature could not have
been raised in earlier proceedings.” Matheny v. State, 834 N.E.2d 658, 662 (Ind.
2005). Claims that could have been, but were not, raised in earlier proceedings
and otherwise were not properly preserved are procedurally defaulted.” Id.
The fact that Ware abandoned the claim before proceeding to a decision on the
merits in his first two petitions does not allow him to escape waiver, especially
in light of the fact that he failed to raise the present claim in his third petition,
which was decided on the merits concerning ineffective assistance grounds.
Based on the record, Ware had known of his alleged plea offer claim since his
first petition for post-conviction relief was filed in 2007. His failure to litigate
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018 Page 8 of 9
this claim when given the opportunity precludes him from raising the claim in a
successive petition.
[10] Under Indiana Post-Conviction Rule 1 section 4(g), the 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.” Here, Ware had
numerous opportunities to present his claim of ineffective assistance of counsel
for failure to convey a plea offer to him, and he has not shown that there is any
genuine issue of material fact regarding his petition. Therefore, the post-
conviction court properly denied relief and summarily disposed of Ware’s
petition pursuant to Indiana Post-Conviction Rule 1(4)(g).
[11] Affirmed.
Baker, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018 Page 9 of 9