Preview:

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.

FILED
May 18 2009, 9:59 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: STEVEN P. TEVERBAUGH Greensburg, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DANIEL D. DAILEY, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 16A04-0901-PC-28

APPEAL FROM THE DECATUR SUPERIOR COURT The Honorable W. Michael Wilke, Judge Cause No. 16D01-0811-PC-579

May 18, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Daniel D. Dailey appeals from the post-conviction court's denial of his petition for post-conviction relief. Dailey raises a single issue for our review, namely, whether the court erred when it denied his petition. We affirm. FACTS AND PROCEDURAL HISTORY On September 12, 2007, the State charged Dailey with criminal recklessness, as a Class A misdemeanor, after Dailey "accelerated and operated his vehicle in such a manner as to cause it to slide sideways, and spun the vehicle twice, then slid sideways back in the direction of the Skate Park." Appellant's App. at 12. On October 31, Dailey pleaded guilty. The court "determine[d] said plea [was] entered freely, knowingly, [and] of his own voluntary act," and it sentenced Dailey to a one-year sentence suspended to formal probation. Id. at 6. On October 27, 2008, the State filed a petition to revoke Dailey's probation. 1 On November 3, Dailey filed his petition for post-conviction relief, arguing that he had not entered his guilty plea knowingly and voluntarily. The court held a hearing on Dailey's petition on December 17, after which the court denied the petition. This appeal ensued. DISCUSSION AND DECISION Dailey appeals from the post-conviction court's denial of his petition for postconviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Saylor v. State, 765 N.E.2d 535, 547 (Ind. 2002). In reviewing the judgment
1

Dailey has not included a copy of the State's petition in the Appellant's Appendix.

2

of a post-conviction court, appellate courts consider only the evidence and reasonable inferences supporting the judgment. Conner v. State, 711 N.E.2d 1238, 1245 (Ind. 1999). The post-conviction court is the sole judge of the evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. Saylor, 765 N.E.2d at 547. 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. As an initial matter, we note that Indiana Post-Conviction Rule 1

Download Daniel D. Dailey v. State of Indiana.pdf

Indiana Law