Ronald Mitchell v. State of Indiana

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MEMORANDUM DECISION - NOT FOR PUBLICATION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
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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:
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(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
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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.
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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.
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