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FOR PUBLICATION
APPELLANT PRO SE: PIERRE D. FISHER Michigan City, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MARJORIE LAWYER-SMITH Deputy Attorney General Indianapolis, Indiana

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

No. 82A05-0704-PC-215

APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable Mary Margaret Lloyd, Judge Cause No. 82C01-9011-CF-8449

December 28, 2007

OPINION - FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Pierre Fisher appeals the post-conviction court's denial of his petition for postconviction relief relating to his convictions following a jury trial of criminal deviate conduct, a Class A felony, and robbery, a Class C felony, and his conviction following a guilty plea of rape, a Class B felony. On appeal, Fisher argues he received ineffective assistance of counsel at his trial and his guilty plea for rape was invalid. Concluding that Fisher has failed to establish that he received ineffective assistance of counsel and that the trial court properly accepted Fisher's guilty plea, we affirm. Facts and Procedural History The underlying facts with regard to Fisher's criminal deviate conduct and robbery convictions appear in this court's opinion on direct appeal affirming Fisher's convictions. The evidence reveals that Fisher posed as a paperboy and got a $20 bill from the victim, who was 78 years old. He then asked to use her telephone to gain entrance to her house. Once inside, he attacked her and pulled her into the guest room. He then took off her clothes and placed his fingers in her vagina. The victim pleaded with him to stop and leave her alone, and Fisher told her he would not leave until he got more money. He told her several times that he had a gun, but she never saw it. He then emptied her purse and took three or four dollars and some change before he left. Fisher v. State, No. 82-A01-9107-CR-218, slip op. at 2 (Ind. Ct. App. Nov. 19, 1991). With regard to Fisher's rape conviction, at Fisher's guilty plea hearing, he admitted that he knowingly compelled another victim to have sexual intercourse with him, without the victim's consent, by using force and the imminent threat of force. Fisher was a juvenile when he committed the offenses, but was tried as an adult following a juvenile waiver hearing. On February 28, 1991, the jury found Fisher guilty of

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criminal deviate conduct and robbery. On March 25, 1991, the trial court held a sentencing hearing and sentenced Fisher to forty years for criminal deviate conduct and six years for robbery, with the sentences running concurrently. On May 3, 1991, Fisher pled guilty to rape in front of Special Judge Robert Matthews, pursuant to a plea agreement under which the State agreed to recommend a sentence of twelve years. Judge Matthews found a factual basis for the plea and ordered a pre-sentence investigation report, but withheld entering a judgment of conviction. On May 22, 1991, Judge Young accepted the plea, entered a judgment of conviction, and sentenced Fisher to twelve years, to be served concurrent to Fisher's criminal deviate conduct and robbery sentences. Fisher appealed, arguing that the victim's identification of him at his juvenile waiver hearing was unduly suggestive, thereby making his waiver to adult court improper, and that the trial court improperly admitted physical evidence. This court affirmed in the previously cited unpublished opinion. Subsequent to this appeal, Fisher filed numerous motions. Relevant to the instant issues, on April 11, 2005, this court issued an order granting Fisher permission to file a Successive Petition for Post-Conviction Relief. On June 29, 2005, Fisher filed a motion for a copy of the record. The Indiana Public Defender subsequently filed a Motion to Rescind Order for Copy of Record, alleging that Fisher had received a copy of the record on September 28, 1992, and that Fisher remembers receiving part of the record at that time. This court granted the motion to rescind, but in a subsequent order indicated "that if the trial court finds that it needs the complete record from [Fisher's] original appeal in order to rule on [Fisher's] Successive Petition for Post-Conviction Relief, this Court will honor a request from the trial court to send to the trial court the record from [Fisher's] direct appeal." 3

Appellant's Appendix at 82. The trial court did not make such a request. Fisher's petition raised four issues: (1) ineffective assistance of trial counsel; (2) whether the trial court improperly accepted his guilty plea to rape; (3) whether his sentence for criminal deviate conduct was manifestly unreasonable; and (4) ineffective assistance of appellate counsel. The post-conviction court denied his petition in an order along with findings of fact and conclusions of law. Fisher now appeals the post-conviction court's order with respect to his claims of ineffective assistance of trial counsel and the trial court's acceptance of his guilty plea. Discussion and Decision Initially, we note that the State claims that Fisher failed to satisfy his burden to the post-conviction court by failing to present a record of the prior proceedings. However, it is plain that Fisher made several motions attempting to obtain a copy of the record. This Court issued an order indicating that it would provide a copy of the record if the post-conviction court determined it needed the record. After this court issued this order, Fisher sent the postconviction court a letter requesting that it obtain a copy of the record from this court. The post-conviction court denied this request, finding "that it does not need a copy of the complete record from the appellant's original appeal." Appellant's App. at 11. We fail to see how Fisher can be held at fault for failing to supply the post-conviction court with the record under these circumstances. The State also argues that as Fisher did not introduce a copy of this court's previous opinion on Fisher's direct appeal and Fisher's initial post-conviction relief petition, he cannot establish that he is not barred, on grounds of res judicata, from raising the issues of 4

ineffective assistance of counsel or improper acceptance of guilty plea at this time. The fundamental problem with the State's argument is that it is not Fisher's burden to establish his claims are not barred by res judicata; instead, as res judicata is an affirmative defense, it was the State's burden to raise this argument and demonstrate that his claims are barred. See Ind. Trial Rule 8(C); Lake Monroe Reg'l Waste Dist. v. Waicukauski, 501 N.E.2d 466, 469 (Ind. Ct. App. 1986) (recognizing that "[r]es judicata had been considered over the years as a defense which must be affirmatively pleaded before the second tribunal[,]" and that the party claiming res judicata has the burden of proof at trial). Regardless, Fisher did not raise any of the instant issues on direct appeal. See Fisher, No. 82-A01-9107-CR-218. Fisher asks that we take judicial notice of the record on his original appeal. The law in Indiana is murky as to whether we may do so. Courts may take judicial notice of a fact "not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Ind. Rule of Evidence 201(a)(2). This court has previously held that "a trial judge may take judicial notice of the pleadings and filings in the very case that is being tried," but that "facts recited within the pleadings and filings that are not capable of ready and accurate determination are not suitable for judicial notice." Brown v. Jones, 804 N.E.2d 1197, 1202 (Ind. Ct. App. 2004), trans. denied. Our supreme court has held that, as a general rule, a post-conviction court may not take judicial notice of the transcript from the original proceeding. Bonds v. State, 729 N.E.2d 1002, 1006 (Ind. 2000). However, our supreme court has also noted, "[t]here are some cases wherein the courts have taken judicial notice of proceedings in other cases in the 5

same or other courts . . . . [F]or reasons apparent in each case the court is justified in noticing judicially the proceedings in other causes." State v. Hicks, 525 N.E.2d 316, 317 (Ind. 1988) (quoting 29 Am.Jur.2d Evidence

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