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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. ATTORNEY FOR APPELLANT: BART M. BETTEAU Betteau Law Office, LLC New Albany, Indiana

FILED
Aug 02 2010, 9:09 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DAVID HOPPER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 31A01-1003-PC-89

APPEAL FROM THE HARRISON SUPERIOR COURT The Honorable Roger D. Davis, Judge Cause Nos. 31D01-0906-PC-8, 31D01-0004-CM-307

August 2, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

David Hopper appeals the post-conviction courts denial of his petition for postconviction relief. Hopper raises one issue, which we revise and restate as whether the post-conviction court erred in denying his petition for post-conviction relief. We affirm. The relevant facts follow. In April 2000, the State charged Hopper with public intoxication as a class B misdemeanor and possession of marijuana as a class A misdemeanor. On May 8, 2000, the trial court held an initial hearing1 and the trial court talked to him about the right to have a lawyer. Hopper signed an "Advice of Rights" and entered a plea of not guilty.2 On July 31, 2000, Hopper without counsel entered into a plea agreement in which Hopper pled guilty to possession of marijuana as a class A misdemeanor, and the State agreed to dismiss the charge of public intoxication as a class B misdemeanor. The State agreed to recommend that Hopper be sentenced to one year in the Harrison County Jail with all but time served suspended. Hopper also signed a Misdemeanor Written

Advisement and Waiver of Rights form which provided in part: 9. You have the right to be represented by an attorney. If you cannot afford an attorney, the Court will appoint an attorney for you. You have the right to a continuance in which to hire an attorney and to have your attorney prepare your case and subpoena witnesses. If you choose to proceed without an attorney, you will be giving up these rights. You have the right to a public and speedy trail [sic] by jury; the right to confront and cross-examine witnesses against you; the right to

10.

1

The record does not contain a copy of the transcript of this initial hearing. The record does not contain a copy of the "Advice of Rights."

2

2

subpoena witnesses at no cost; the right to require that the State prove you guilty beyond a reasonable doubt at a trial at which you do not have to testify, but in which you may testify if you wish; and the right to appeal any decision made by the Judge. By pleading guilty you will give up and waive each and every one of these rights. States Exhibit 1. That same day, the trial court held a guilty plea hearing and Hopper indicated that he had read, signed and "go[ne] over in detail the Plea Agreement and written advisement form." Defendants Exhibit C. The trial court accepted the plea agreement and sentenced Hopper to one year with all time suspended except for time served. On June 29, 2009, Hopper filed a petition for post-conviction relief and request for specific findings of fact and conclusions of law. Hopper argued that he was denied his right to due process and his right to counsel because he "entered a plea of guilty pro se in the absence of a valid waiver of counsel," and because "his alleged guilty plea was tainted by illegal acts of the prosecutor in engaging in plea negotiations with the Accused who had not waived counsel." Appellants Appendix at 5-6. After a hearing, the postconviction court found that Hopper was advised of his right to counsel and denied Hoppers petition. Before discussing Hoppers allegations of error, we note the general standard under which we review a post-conviction courts 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 3

post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. 810 N.E.2d at 679. 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 courts findings and judgment will be reversed only upon a showing of clear error

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