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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: DAVID R. HENNESSY Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

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

No. 49A02-0603-PC-241

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Robert R. Altice, Jr., Judge The Honorable Amy J. Barbar, Magistrate Cause No. 49G02-0403-PC-40396

December 29, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION BAILEY, Judge

Case Summary Lonnie Weaver appeals from the denial of his petition for postconviction relief that was filed under the Davis/Hatton procedure, 1 challenging his convictions for Burglary, a Class B felony 2 and Carrying a Handgun without a License, as a Class C felony. 3 We affirm. Issues Weaver presents a single issue on direct appeal: whether the trial court improperly considered evidence outside the record. He presents a single issue challenging the denial of postconviction relief: whether he was denied the effective assistance of trial counsel. Facts and Procedural History On February 24, 2004, Ruth Armstrong Reily ("Reily") returned to her Indianapolis home at approximately 5:45 p.m. As she opened the side door, Reily heard a thump. Assuming that her dog was running loose in the house, Reily proceeded inside. When she entered the kitchen, Reily saw a man struggling to get out of her kitchen window, with his body half in and half out, and his face up. Reily screamed and the intruder looked at her for

The procedure "involves a termination or suspension of a direct appeal already initiated, upon appellate counsel's motion for remand or stay, to allow a postconviction relief petition to be pursued in the trial court." State v. Lopez, 676 N.E.2d 1063, 1069 (Ind. Ct. App. 1997), trans. denied (citing Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977), and Hatton v. State, 626 N.E.2d 442 (Ind.1993)). Once the petition for postconviction relief is denied after a hearing, and the direct appeal is reinstated, the direct appeal and the appeal of the denial of postconviction relief are consolidated. Edmond v. State, 790 N.E.2d 141, 144 (Ind. Ct. App. 2003), trans. denied (citing Powell v. State, 714 N.E.2d 624, 626 (Ind.1999)).
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Ind. Code

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