J.B., Appellant-Defendant, v. STATE OF INDIANA (2006)

MEMORANDUM DECISION - NOT FOR PUBLICATION

STATEMENT OF THE CASE

Defendant-Appellant J.B. is appealing from the denial of his petition for post-conviction releif.

We affirm.

ISSUE

J.B. states the issue as “Whether the post-conviction court improperly failed to issue subpoena of trial counsel for the appellant's post conviction hearing to support [J.B.’s] claim of ineffective assistance of counsel?”

FACTS

J.B. entered a guilty plea pursuant to a plea agreement to the charge of possession of marijuana. The State dismissed the charges for battery and resisting law enforcement.

J.B. filed a motion for post conviction relief based upon his claim of ineffective assistance of trial counsel. He also moved the post-conviction court to issue a subpoena for his trial counsel. The post-conviction court set the matter for an evidentiary hearing. Two witnesses appeared on J.B.’s behalf and testified as to the events that lead to J.B.’s arrest.

DISCUSSION AND DECISION

A defendant who has exhausted the direct appeal process may challenge the correctness of his convictions and sentence by filing a post-conviction petition. Parish v. State, 838 N.E.2d 495, 499 (Ind. Ct. App. 2005). Post-conviction procedures do not provide an oppurtunity for a super-appeal. Id. Rather, they create a narrow remedy for subsequent collateral challenges to convictions that must be based on grounds enumerated in the post-conviction rules. Id. Post-conviction proceedings are civil proceedings, and a defendant must establish his claims by a preponderance of the evidence. Id. Because the defendant is now appealing from a negative judgment, to the extent his appeal turns on factual issues, he must convince the appellate court that the evidence as a whole leads unerringly and unmistakenly to a decision opposite that reached by the post-conviction court. Id. In other words, the defendant must convince us that there is no way that the post-conviction court could have reached the decision it did. Id.

As the State points out, the Post-Conviction Rule 9(b) provides in part that “if the pro-se petitioner requests the issuance of subpoenas for witnesses at an evidentiary hearing, the petitioner shall specifically state by affidavit the reason the witness’ testimony is required and the substance of the witness’ expected testimony.” The record does not reflect any such affidavit being filed with the court, and in the absence of this affidavit, the post-conviction court correctly refuse to issue the requested subpoena.

Additionally, there was no evidence presented at the evidentiary hearing that even remotely concerned ineffective assistance of trial counsel. The appellant bears the burden of presenting a record that is complete with respect to the issues raised on appeal. Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App. 2004), trans. denied.

CONCLUSION

The post-conviction court did not err in denying the petition for post-conviction relief. Judgment affirmed.

ROBERTSON, Senior Judge

VAIDIK, J., and ROBB, J., concur.