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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: ATTORNEYS FOR APPELLEE:

DONYALL EARL WHITE    GREGORY F. ZOELLER
New Castle, Indiana     Attorney General of Indiana

       MONIKA PREKOPA TALBOT
       Deputy Attorney General
       Indianapolis, Indiana
  



IN THE
COURT OF APPEALS OF INDIANA




DONYALL EARL WHITE, )
)
Appellant-Defendant, )
)
vs. ) No. 18A04-0904-PC-235
)
STATE OF INDIANA, )
    )
Appellee-Plaintiff. )




APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Linda Ralu Wolf, Judge
Cause No.  18C03-0301-FB-6




December 22, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge




Case Summary
Donyall Earl White, pro se, appeals the denial of his petition for post-conviction relief.  He raises claims of ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and double jeopardy/sentencing.  Finding that the freestanding claims of prosecutorial misconduct and double jeopardy/sentencing are not available on post-conviction and that White has not met his burden of proving ineffective assistance of counsel because neither his attorney testified nor was his trial transcript admitted into evidence at the hearing, we affirm.    
Facts and Procedural History
In January 2003 the State charged White with two counts of Class B felony armed robbery and two counts of Class B felony criminal confinement.  Following a jury trial, White was convicted of all counts, and the trial court sentenced him to an aggregate term of twenty-four years.  On direct appeal, White raised two issues: (1) whether the trial court erred by admitting his boots in evidence and (2) whether the evidence was sufficient to sustain his convictions.  White v. State, No. 18A02-0308-CR-672 (Ind. Ct. App. Apr. 22, 2004).  We affirmed.  
In 2005 White filed a pro se petition for post-conviction relief, which he amended in 2008.  At the hearing on his amended petition, White briefly testified but did not call any other witnesses.  In addition, he did not admit the transcript from his trial into evidence.  Following the hearing, the post-conviction court issued findings of fact and conclusions of law denying relief.  White, pro se, now appeals.    
  
Discussion and Decision
White appeals the denial of his petition for post-conviction relief.  Specifically, he argues that he received ineffective assistance of both trial and appellate counsel.  He also raises the freestanding claims of prosecutorial misconduct and double jeopardy/sentencing.  The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence.  Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008).  When appealing the denial of post-conviction relief, the petitioner stands in the position of one appealing from a negative judgment.  Id.  To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.  Id. at 643-44.  Further, the post-conviction court in this case made findings of fact and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6).  Although we do not defer to the post-conviction court.s legal conclusions,

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