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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.

FILED
Dec 18 2008, 9:50 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: SUSAN K. CARPENTER Public Defender of Indiana DEIDRE R. ELTZROTH Deputy Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ROBERT E. MONEY, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

No. 22A01-0805-PC-241

APPEAL FROM THE FLOYD SUPERIOR COURT The Honorable Susan L. Orth, Judge Cause No. 22D01-0603-PC-1

December 18, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge

Case Summary Robert Money appeals the denial of his petition for post-conviction relief ("PCR"). We affirm. Issue The sole restated issue is whether the post-conviction court properly concluded that Money received effective assistance of counsel when he pled guilty to Class A felony dealing in cocaine and to being an habitual offender. Facts The facts most favorable to the post-conviction courts judgment are that on July 16, 2003, the State charged Money with Class A felony dealing in cocaine. On

December 8, 2003, the State filed a separate information charging Money with two counts of Class B felony dealing in cocaine; on December 11, 2003, it added an allegation that Money was an habitual offender. On December 15, 2003, the State also moved to amend the information in the Class A felony case to add an allegation that Money was an habitual offender. Moneys trial counsel objected to this amendment on the basis that it was untimely, but the trial court overruled the objection and allowed the amendment. On January 5, 2004, Money pled guilty to the Class A felony charge and the habitual offender allegation, with sentencing left to the trial court. In exchange, the State dismissed the Class B felony charges. The trial court accepted the plea and sentenced Money to forty years for the Class A felony conviction, enhanced by thirty years for the 2

habitual offender finding, for a total sentence of seventy years. Money directly appealed to this court, contending that his sentence was inappropriate. We rejected this argument and affirmed. See Money v. State, No. 22A01-0406-CR-282 (Ind. Ct. App. Jan. 18, 2005), trans. denied. On March 18, 2006, Money filed a PCR petition, which later was amended by counsel. The petition alleged that Money had received ineffective assistance of counsel because counsel failed to advise Money that the habitual offender enhancement of his sentence was not permitted by statute and, thus, illegal. On March 31, 2008, the postconviction court denied the petition. Money now appeals. Analysis Post-conviction proceedings provide defendants the opportunity to raise issues not known or available at the time of the original trial or direct appeal. Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007). If an issue was known and available but not raised on direct appeal, the issue is procedurally foreclosed. Id. "If an issue was raised and decided on direct appeal, it is res judicata." Id. "In post-conviction proceedings,

complaints that something went awry at trial are generally cognizable only when they show deprivation of the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal." Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). "In post-conviction proceedings, the defendant bears the burden of proof by a preponderance of the evidence." Stephenson, 864 N.E.2d at 1028. We review factual findings of a post-conviction court under a "clearly erroneous" standard but do not defer 3

to any legal conclusions. Id. We will not reweigh the evidence or judge the credibility of the witnesses and will examine only the probative evidence and reasonable inferences therefrom that support the decision of the post-conviction court. Id. Claims of ineffective assistance of counsel are reviewed under the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006). A defendant must demonstrate both that counsels performance fell below an objective standard of reasonableness based on prevailing professional norms, and that the deficient performance resulted in prejudice. Id. Prejudice occurs when the defendant demonstrates that "there is a reasonable

probability that, but for counsels unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). The State concedes that the habitual offender enhancement of Moneys sentence for Class A felony dealing in cocaine, which falls under Indiana Code Section 35-48-4-1, was statutorily impermissible. Habitual offender enhancements are not permitted if: (3) all of the following apply: (A) The offense is an offense under IC 16-42-19 or IC 35-48-4. (B) The offense is not listed in section 2(b)(4) of this chapter. (C) The total number of unrelated convictions that the person has for: (i) dealing in or selling a legend drug under IC 16-42-19-27; 4

(ii) dealing in cocaine or a narcotic drug (IC 3548-4-1); (iii) dealing in a schedule I, II, III controlled substance (IC 35-48-4-2); (iv) dealing in a schedule IV controlled substance (IC 35-48-4-3); and (v) dealing in a schedule V controlled substance (IC 35-48-4-4); does not exceed one (1). Ind. Code

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