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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be 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: CARL ERLEWEIN, JR. Pendleton, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MATTHEW D. FISHER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CARL ERLEWEIN, JR., Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 21A01-0512-PC-575

APPEAL FROM THE FAYETTE SUPERIOR COURT The Honorable Matthew R. Cox, Special Judge Cause No. 21D02-0202-PC-122

December 27, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Judge

Carl Erlewein, Jr., appeals the post-conviction court's denial of his petition for post-conviction relief. Erlewein raises two issues, which we consolidate and restate as whether the post-conviction court erred by denying Erlewein's petition for postconviction relief. We affirm. The relevant facts follow. In 1987, the State charged Erlewein with theft as a class D felony. On January 7, 1987, Erlewein appeared for an initial hearing and requested appointment of counsel. The trial court set an indigency hearing for January 14, 1987. On January 7, 1987, the State also filed an information alleging that Erlewein was an habitual offender. Later in the day, Erlewein entered into a plea agreement with the State in which Erlewein agreed to plead guilty to theft as a class D felony, the State agreed to dismiss the habitual offender information, and Erlewein agreed to be sentenced to four years in the Indiana Department of Correction with two years suspended to probation. That afternoon, Erlewein reappeared before the trial court without counsel, withdrew his motion for appointment of counsel, and informed the trial court that he wished to plead guilty to theft as a class D felony. The following discussion occurred during the guilty plea hearing: THE COURT: Now, Mr. Erlewein, this morning you indicated to me that you wanted me to appoint you a lawyer, I set an indigence hearing for January the 14th, 1987 to determine your indigence hearing and your right to that court appointed lawyer. Now, Mr. Erlewein, are you withdrawing your motion for appointment of pauper counsel? [ERLEWEIN]: Yes sir. ***** THE COURT: Now then, if you enter a plea of guilty, you will waive or give up the following constitutional rights that you have. . . . [Y]ou'll waive the right you have to assistance of counsel or in other words lawyer. 2

Now, if you cannot afford to hire your own lawyer, the court will appoint you a lawyer to represent you if that is your desire and if you qualify. Qualifications being, that you be an indigent, therefore without the money or means in which to hire your own lawyer. Do you wish the court to appoint you a lawyer? [ERLEWEIN]: No sir. THE COURT: Now then Mr. Erlewein, you asked me this morning to appoint you a lawyer, is that correct? [ERLEWEIN]: Yes sir. THE COURT: Now, are you now withdrawing your motion for me to appoint you a lawyer to represent you in this case? [ERLEWEIN]: Yes sir. THE COURT: But you understand that if you wanted me to appoint you a lawyer to represent you and if you were qualified for that court appointed lawyer and that qualification being that you being indigent, or in other words without the money or means in which to hire your own lawyer to represent you in this cause, that I would appoint a lawyer to represent you, do you not? [ERLEWEIN]: Yes. THE COURT: But you do not want me to appoint you a lawyer to represent you, is that correct? [ERLEWEIN]: Yes. THE COURT: You do not want me to, is that correct? [ERLEWEIN]: Yes. THE COURT: Now Mr. Erlewein, if you have been convicted of prior offenses that fact may effect disposition of the charge that is now pending against you. If you intend to enter a plea of guilty, they must be freely and voluntarily entered and there can have been nor [sic] force, promise or threats made or used by anyone against you to cause you to enter the plea. If there have been, you should inform the court of that fact now. Have there been? [ERLEWEIN]: No sir. Appellant's Appendix at 57-64. The trial court accepted Erlewein's guilty plea and sentenced him according to the plea agreement. On February 20, 2002, Erlewein filed a petition for post-conviction relief, and he filed an amended petition on January 24, 2005. Erlewein alleged that his guilty plea was not knowingly, intelligently, or voluntarily entered into because of his lack of counsel 3

and that the prosecutor coerced him into pleading guilty. Erlewein submitted the case by affidavit. The post-conviction court denied Erlewein's petition for post-conviction relief, finding that "[t]he record or transcript clearly shows that [Erlewein] freely and voluntarily chose to proceed without a lawyer and that the Court accepted [Erlewein's] knowing and voluntary plea of guilty" and that Erlewein's claim was barred by laches. Id. at 86. Before discussing Erlewein's allegations of error, we note the general standard under which we review a post-conviction court's denial of a petition for post-conviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Id. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). Id. "A post-conviction court's findings and judgment will be reversed only upon a showing of clear error

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