Kelvin Lee Heyen v. State of Indiana ( 2013 )

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 Aug 13 2013, 7:19 am
judicata, collateral estoppel, or the law
of the case.
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
KELVIN LEE HEYEN GREGORY F. ZOELLER
Bunker Hill, Indiana Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KELVIN LEE HEYEN, )
)
Appellant-Petitioner, )
)
vs. ) No. 84A01-1207-PC-345
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable John T. Roach, Judge
Cause No. 84D01-1101-PC-24
August 13, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Kelvin Heyen appeals the denial of his petition for post-conviction relief. We
affirm.
Issues
Heyen raises seven issues, which we consolidate and restate as:
I. whether the purported newly discovered evidence
mandates a new trial; and
II. whether he received ineffective assistance of appellate
counsel.
Facts
The relevant facts are:
On April 24, 2007, Detective Karen Cross (Detective
Cross), an officer with the Vigo County Sheriff’s Department
and a member of the Vigo County Drug Task Force, arranged
a controlled methamphetamine buy from Heyen with the help
of confidential informant # 174 (CI) at a predetermined
location. Before the controlled buy, Detective Paul Hartzler
(Detective Hartzler) searched the CI and the CI’s car, which
revealed that he did not have any contraband on him, and then
wired him with an audio video recorder. The Detectives gave
the CI $50, which had been photocopied, and instructed him
to purchase half a gram of methamphetamine. Detectives then
followed the CI to 3071 Old Paris Road in West Terre Haute,
Indiana. While under audio video surveillance, the CI
exchanged the money provided by the Detectives for a baggie
containing a white substance, which later tested to be .38
grams of methamphetamine.
After the controlled buy, Detective Cross reviewed the
videotape and identified Heyen as the person talking with the
CI. Additionally, Detective Cross completed a background
investigation on Heyen and discovered that he had prior
felony convictions relating to controlled substances. . . .
2
*****
On August 13, 2007, the State filed an Information
charging Heyen with Count I, dealing in methamphetamine, a
Class B felony, I.C. § 35-48-4-1.1 and Count II, an habitual
substance offender, I.C. § 35-50-2-10. On December 1, 2009,
the State amended the habitual substance offender charge to
an habitual offender charge. On December 15-16, 2009, a
two-day jury trial was held. The jury found Heyen guilty as
charged. On January 27, 2010, a sentencing hearing was held
and the trial court sentenced Heyen to ten years for Count I
and enhanced the sentence by fourteen years because of the
habitual offender finding for a total of twenty-four years.
Heyen v. State, 936 N.E.2d 294, 298-99 (Ind. Ct. App. 2010), trans. denied. On direct
appeal, Heyen raised issues related to the admission of evidence, the disclosure of the
CI’s identity, the sufficiency of the evidence, ineffective assistance of trial counsel, and
his sentence. We affirmed the conviction, the habitual offender finding, and the sentence.
See id. at 306.
On December 15, 2010, Heyen filed a petition for post-conviction relief.1
Although counsel was appointed to represent Heyen, he elected to proceed pro se and
requested that counsel withdraw from the case, which was ordered on April 8, 2011. The
State responded to Heyen’s petition, and Heyen and the State submitted evidence for the
post-conviction court’s consideration. On March 29, 2012, an evidentiary hearing was
conducted.
On May 25, 2012, the post-conviction court denied Heyen’s petition. In its order,
the post-conviction court found in part:
1
Heyen did not include his post-conviction relief petition in his appendix.
3
20. Petitioner’s entire focus at the evidentiary hearing was
on a re-trial of issues already resolved in the criminal
proceeding. He attempted to cross-examine the Vigo County
Drug Task Force Detectives who testified at trial, attempting
to call into question the sufficiency and credibility of the
controlled buy transaction.
21. Petitioner also called Ron Prouse to testify. Ron
Prouse is the CI who purchased methamphetamine from
petitioner and who signed the Prouse Letter, which was
submitted to the trial judge after the trial. The Prouse Letter
was included in petitioner’s evidentiary submissions.
22. Ron Prouse was not a credible witness at the
evidentiary hearing. He admitted to having a faulty memory
both due to his longstanding physical illnesses and due to his
past drug usage. While he denied being a CI, he did
acknowledge he signed the CI Agreement.
23. With respect to the Prouse Letter, Ron Prouse testified
that he never wrote that letter, and never said the words
contained therein. He testified he was pressured into signing
the letter by petitioner’s girlfriend and sister. Ron Prouse
further testified he was afraid not to sign the letter and did so
to stop being harassed.
24. Petitioner called Attorney Christopher Shema to
testify. When Attorney Shema informed petitioner he may be
waiving attorney-client privilege by his questions, petitioner
declined to put on any testimony from Attorney Shema.
25. Petitioner did not call his appellate counsel, Attorney
Mark Watson.[2]
26. The voluminous filings in this case are consistent with
petitioner’s attempts at the evidentiary hearing to re-litigate
his criminal charges. He levies attacks on the integrity of the
controlled buy, the credibility of the CI, and on the ultimate
finding of the jury that he engaged in a drug transaction with
the CI. Petitioner even acknowledges that he is shown on the
videotape with the CI exchanging methamphetamine and
2
Apparently, Heyen’s subpoena to Watson was returned because Watson was no longer at that address.
4
asking the CI if he wants change due to the weight of the
drugs. However, petitioner argues the drugs were “mere
crumbs,” that no money was exchanged and that he only
asked about change because of the way the CI held out the
money.
P-CR App. p. 4. The post-conviction court concluded that the Prouse Letter was not
newly discovered evidence requiring a new trial, that Heyen waived various claims, that
other claims were barred because they had been addressed on direct appeal, that Heyen
failed to prove his claim of ineffective assistance of appellate counsel, and that he did not
carry his burden of proof on other claims “[s]mattered throughout petitioner’s copious
filings[.]” Id. at 9. Heyen now appeals.
Analysis
Generally, the completion of the direct appeal process closes the door to a
defendant’s claims of error in conviction or sentencing. Pruitt v. State, 903 N.E.2d 899,
905 (Ind. 2009). However, defendants whose appeals have been rejected are allowed to
raise a narrow set of claims through a petition for post-conviction relief. Id. (citing Ind.
Post-Conviction Rule 1(1)). “The range of relief provided under the post-conviction
rules is limited to ‘issues that were not known at the time of the original trial or that were
not available on direct appeal.’” State v. Brunner, 947 N.E.2d 411, 414 (Ind. 2011),
(quoting Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied). The
purpose of post-conviction proceedings is to give a petitioner an opportunity to raise
issues that were unknown or unavailable to the petitioner at the time of his or her original
appeal. Id.5
A post-conviction court must make findings of fact and conclusions of law on all
issues presented in the petition. Pruitt, 903 N.E.2d at 905 (citing P-C.R. 1(6)). The
findings must be supported by the facts, and the conclusions must be supported by the
law. Id. “Our review on appeal is limited to these findings and conclusions.” Id.
The petitioner bears the burden of proof, and an unsuccessful petitioner appeals
from a negative judgment. Id. A petitioner appealing from a negative judgment must
show that the evidence as a whole leads unerringly and unmistakably to a conclusion
opposite to that reached by the post-conviction court. Id. We will disturb a post-
conviction court’s decision as being contrary to law only where the evidence is without
conflict and leads to but one conclusion and the post-conviction court has reached the
opposite conclusion. Id.
I. Newly Discovered Evidence
Heyen argues that so much time passed between the controlled buy and the trial
that he could not recall who the CI might have been. According to Heyen, it was not
until the day of sentencing, when a letter was produced by Ron Prouse identifying
himself as the CI, that Heyen’s memory was sparked regarding the CI’s identity. Heyen
argues Prouse’s testimony is newly discovered evidence that mandates a new trial.3
As our supreme court has explained:
3
The post-conviction court addressed the issue as whether Prouse’s letter was newly discovered evidence
that required a new trial. On appeal, Heyen clarifies that his argument is not based on the discovery of
Prouse’s letter but on the discovery of Prouse’s identity as the CI. Without the post-conviction relief
petition, we are unable to determine how the issue was framed to the post-conviction court. Regardless,
in the letter and in his post-conviction relief hearing testimony, Prouse denied purchasing drugs from
Heyen, and we review Heyen’s claim of newly discovered evidence based on that premise.
6
new evidence will mandate a new trial only when the
defendant demonstrates that: (1) the evidence has been
discovered since the trial; (2) it is material and relevant; (3) it
is not cumulative; (4) it is not merely impeaching; (5) it is not
privileged or incompetent; (6) due diligence was used to
discover it in time for trial; (7) the evidence is worthy of
credit; (8) it can be produced upon a retrial of the case; and
(9) it will probably produce a different result at retrial.
Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000). These factors are analyzed with care, as
the basis for newly discovered evidence should be received with great caution and the
alleged new evidence carefully scrutinized. Id.First, it is not clear that Prouse’s identity was not discovered until after the trial.
On direct appeal, we addressed a challenge to the trial court’s denial of Heyen’s request
to compel the identity of the CI and explained:
As noted by the State and based on the evidence, it is clear
from audio video tapes admitted into evidence as State’s
Exhibit’s 3A and B that Heyen knew the identity of the CI.
The CI knew the location of Heyen’s residence without
guidance from the Detectives. Additionally, during the
transaction, Heyen and the CI discussed many mutual
acquaintances and at one point, Heyen commented that the CI
was “a good dude.” (State’s Exh. 3B). Therefore, based on
their familiar interactions with each other, we conclude that
Heyen has not shown that the CI’s identity was unknown to
him and any refusal by the trial court to disclose his identity
or not to allow him to call the CI as a witness was harmless
error.
Heyen, 936 N.E.2d at 301. This is consistent with Prouse’s testimony at the post-
conviction relief hearing that he met Heyen through a mutual drug acquaintance and that
he knew of Heyen for three or four months before Heyen went to jail. Further, the video
of the transaction shows that Prouse was at Heyen’s house for approximately twenty
7
minutes and that the two men spoke casually about a mutual acquaintance and cars.
Thus, Heyen has not shown that Prouse’s identity was discovered after trial.
Further, Heyen has not established that Prouse’s testimony would have been
credible. Specifically, the post-conviction court found that Prouse was not a credible
witness because of his admission that his memory was faulty due to his longstanding
physical illnesses and past drug use. The post-conviction court concluded, “[t]he Prouse
Letter, and Ron Prouse’s recitation of its content at the evidentiary hearing, is simply not
believable.” P-CR App. p. 6.
Finally, in light of the police officers’ testimony about the controlled buy, the
video of the transaction, and the CI agreement signed by Prouse, we are not convinced
that Prouse’s testimony denying that he bought drugs from Heyen would probably
produce a different result at trial. Accordingly, Heyen has not established that the post-
conviction court erroneously concluded that a new trial was not required.
Relying on the post-conviction court’s finding that Prouse was not a credible
witness, Heyen also asks us to suppress any evidence produced by Prouse because it
cannot be used to establish probable cause to support his arrest. However, Heyen’s
conviction was not based on the credibility of Prouse’s post-conviction hearing
testimony. Instead, Heyen’s conviction was based on the evidence produced at trial,
including the video footage of the transaction and the police officers’ testimony about the
controlled buy. This argument is unavailing.
II. Ineffective Assistance of Appellate Counsel
8
Heyen raises several freestanding claims of error. These issues, however, were all
available at the time of Heyen’s direct appeal. Accordingly, to the extent they were not
raised on direct appeal, they are waived. See Reed v. State, 856 N.E.2d 1189, 1194 (Ind.
2006) (“If an issue was known and available but not raised on appeal, it is waived.”). To
the extent they were raised on direct appeal, they are barred by the doctrine of res
judicata. See id. (“If an issue was raised on direct appeal, but decided adversely to the
petitioner, it is res judicata.”).
Heyen also frames some of the issues as ineffective assistance of trial counsel
claims. However, on direct appeal, Heyen argued that trial counsel was ineffective for
failing to file a motion to suppress or to compel the disclosure of the CI. Accordingly,
the issues of ineffective assistance of trial counsel are barred by res judicata. See Woods
v. State, 701 N.E.2d 1208, 1220 (Ind. 1998) (“[I]f ineffective assistance of trial counsel is
raised on direct appeal . . . the issue will be foreclosed from collateral review.”), cert.
denied; Bieghler v. State, 690 N.E.2d 188, 200-01 (Ind. 1997) (concluding that, where
ineffective assistance of counsel was raised on direct appeal, new arguments about trial
counsel’s performance are not available because the earlier ruling that trial counsel was
not ineffective is res judicata), cert. denied.
Because the freestanding claims and ineffective assistance of trial counsel claims
are either waived or barred by res judicata, only the claims framed as ineffective
assistance of appellate counsel were available in these post-conviction proceedings.4
4
Heyen argues that many of his claims should not be barred by the doctrine of res judicata because “[a]
court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance,
9
“Appellate counsel’s performance, like trial counsel’s performance, is governed by the
two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L.Ed.2d 674 (1984).” Hill v. State, 960 N.E.2d 141, 145 (Ind. 2012). To prevail on a
claim of ineffective assistance of appellate counsel, Heyen must show that (1) appellate
counsel’s performance fell below an objective standard of reasonableness based on
prevailing professional norms and (2) there is a reasonable probability that, but for
appellate counsel’s errors, the result of the proceeding would have been different. See id.“Ineffective assistance of appellate counsel claims fall into three categories: (1)
denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.”
Carter v. State, 929 N.E.2d 1276, 1278 (Ind. 2010). Most of Heyen’s claims are based on
appellate counsel’s failure to raise certain issues. “Ineffectiveness is rarely found when
the issue is failure to raise a claim on direct appeal.” Taylor v. State, 717 N.E.2d 90, 94
(Ind. 1999). Because the strategic decision regarding which issues to raise on appeal is
one of the most important decisions to be made by appellate counsel, appellate counsel’s
failure to raise a specific issue on direct appeal rarely constitutes ineffective assistance.
Id. The Indiana Supreme Court has adopted a two-part test to evaluate the deficiency
prong of these claims: (1) whether the unraised issues are significant and obvious from
although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as
where the initial decision was clearly erroneous and would work manifest injustice.” State v. Huffman,
643 N.E.2d 899, 901 (Ind. 1994) (quotations and citations omitted). Heyen, however, has not established
extraordinary circumstances that require us to revisit our decision on direct appeal. Further, Heyen argues
that appellate counsel’s failure to raise certain issues on direct appeal was fundamental error. To the
extent such a claim is properly presented in this context, Heyen has not established that the purported
errors constitute “clearly blatant violations of basic and elementary principles of due process presenting
an undeniable and substantial potential for harm.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009).
10
the face of the record; and (2) whether the unraised issues are “clearly stronger” than the
raised issues. Bieghler, 690 N.E.2d at 194. If this analysis demonstrates deficient
performance by counsel, the court then examines whether the issues that appellate
counsel failed to raise “would have been clearly more likely to result in reversal or an
order for a new trial.” Id.
As for Heyen’s claims that appellate counsel should have more effectively argued
certain issues on direct appeal, these claims “must overcome the strongest presumption of
adequate assistance.” Bieghler, 690 N.E.2d at 196. “Judicial scrutiny of counsel’s
performance, already ‘highly deferential,’ Spranger v. State, 650 N.E.2d 1117, 1121 (Ind.
1995), is properly at its highest.” Id. “Relief is only appropriate when the appellate court
is confident it would have ruled differently.” Id.A. Controlled Buy
Heyen argues that the reliability of the controlled buy is called into question by the
purported failure to search and remove packages from the CI’s car prior to the buy. In
the video of the buy, a rattling sound can be heard while the CI is driving to Heyen’s
house. In response to a jury question about what the CI was eating as he drove to
Heyen’s house, Detective Karen Cross of the Vigo County Drug Task Force stated, “I’m
not sure if he was eating or smoking. I heard some rattling of packages, I don’t know.”
Trial Tr. p. 159. After further questioning on this issue, Detective Cross testified that she
did not know if the packages were searched. Based on the premise that the vehicle was
not properly searched as part of the protocol for a controlled buy, Heyen argues there was
11
not probable cause to support his arrest and appellate counsel was ineffective for failing
to raise the issue on appeal.
However, after Detective Cross testified, Detective Paul Hartzler of the Vigo
County Drug Task Force testified that he was primarily responsible for conducting the
search of the CI and his car. Detective Hartzler described the protocol for searching a
CI’s car. He explained that if there are any bags or anything in the car, he removes them
and puts them in his vehicle. He explained that if someone is a smoker, he removes all
the cigarettes from the pack, checks each cigarette to make sure nothing is in it, and
allows the CI to take two or three cigarettes. Detective Hartzler stated that he follows the
same protocol in every case and that he did not find any narcotics, money, or contraband
during his search of the CI’s car. When questioned about what he does if he finds candy
bars or bags of food, Detective Hartzler stated that he generally removes it and secures it
in his car while the transaction is being conducted. Although Detective Hartzler could
not recall whether he found any food in the CI’s car during the search, he did remember
the CI smoking.
Because of Detective Hartzler’s extensive testimony regarding the protocol for
searching a vehicle as part of every controlled buy, Heyen has not shown that the
controlled buy was unreliable. As such, he has not established that this unraised issue
was clearly stronger than the other issues raised on appeal. See Bieghler, 690 N.E.2d at
194. Further, the record shows that defense counsel did question Detective Hartzler
about whether the protocol was used in this particular case, and Detective Hartzler could
not specifically recall. As such, Heyen’s claim that appellate counsel should have raised
12
the issue of defense counsel’s failure to follow up is without merit, and this issue is not
clearly stronger than the other issues raised on appeal. See id.
Heyen also argues that appellate counsel should have claimed trial counsel was
ineffective for not arguing to the jury that, because the protocol was not followed and the
CI was motivated by the hope of favorable treatment in another criminal matter, he hid
the drugs in his car and gave them to the detectives to get out of trouble. Had appellate
counsel raised such a claim, it would have been unavailing because trial counsel’s
performance did not fall below an objective standard of reasonableness.
Defense counsel did question Detective Hartzler about the protocol and removal of
bags, and there is no evidence that protocol was not followed. Further, Detective Cross
testified at trial that the CI offered to assist because he was in trouble in Illinois and,
during cross-examination, Detective Cross agreed that the CI came to her “on a silver
platter.” Tr. p. 122. Trial counsel also elicited testimony that the CI received “some type
of deal” in exchange for his assistance. Id. at 124. Because trial counsel did make the
jury aware of the purported issues with the pre-buy search of the CI’s car and the CI’s
motivation to help police, this would not have been a successful ineffective assistance of
trial counsel claim, and appellate counsel was not ineffective for failing to raise this
argument on appeal.
B. Jury Instruction
Heyen argues that appellate counsel was ineffective for failing to challenge the
trial court’s refusal to tender three of his proposed jury instructions. On appeal, to
establish that the trial court erroneously refused a tendered instruction, appellate counsel
13
would have had to show: “1) the instruction correctly states the law, 2) evidence supports
the instruction, and 3) no other instructions cover the substance of the tendered
instruction.” Davidson v. State, 849 N.E.2d 591, 593 (Ind. 2006). Heyen, however,
provides no analysis of whether the tendered instructions were correct statements of the
law, were supported by the evidence, and were not covered by other instructions.5 He,
therefore, has not established that this issue was stronger than the other issues raised on
appeal.
C. CI’s Identity
On direct appeal, Heyen argued that the trial court improperly denied trial
counsel’s request to disclose the CI’s identity. Appellate counsel argued that the State
failed to show a paramount interest in the nondisclosure of the CI’s identity, that the State
failed to disclose the CI’s identity in violation of Brady v. Maryland, 373 U.S. 83, 83 S.
Ct. 1194 (1963), and that the State’s failure to disclose the CI’s identity violated various
constitutional rights, including his right to confrontation. We rejected these arguments
and reasoned, “based on their familiar interactions with each other, we conclude that
Heyen has not shown that the CI’s identity was unknown to him and any refusal by the
trial court to disclose his identity or not to allow him to call the CI as a witness was
harmless error.” Heyen, 936 N.E.2d at 301.
Heyen argues that appellate counsel should have more effectively argued that a
Brady violation occurred and focuses on the State’s failure to disclose the CI agreement
5
In his reply brief, Heyen directs us to the pages of his direct appeal appendix that contain the tendered
instructions and a paragraph of “general supporting authority.” Direct Appeal App. pp. 161-65. This
reference is untimely and insufficient to establish that the instructions were improperly rejected.
14
with Prouse. Because appellate counsel framed this argument generally—as the
disclosure of the CI’s identity—and we rejected it, we are not convinced that we would
have decided the issue differently if it had been made based on the failure to disclose the
CI agreement because it would have revealed the CI’s identity. See Bieghler, 690 N.E.2d
at 196.
Heyen also argues that appellate counsel should have more effectively argued that
the failure to disclose the CI’s identity denied him his Sixth Amendment right to
confrontation.6 Heyen’s argument appears to be based on Crawford v. Washington, 541
U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004), in which the Supreme Court held,
“[t]estimonial statements of witnesses absent from trial have been admitted only where
the declarant is unavailable, and only where the defendant has had a prior opportunity to
cross-examine.” We have explained, however, that “the Confrontation Clause ‘does not
bar the use of testimonial statements for purposes other than establishing the truth of the
matter asserted.’” Williams v. State, 930 N.E.2d 602, 607 (Ind. Ct. App. 2010) (quoting
Crawford, 541 U.S. at 59 n.9, 124 S. Ct. at 1369), trans. denied. “Thus, if a statement is
either nontestimonial or nonhearsay, the federal Confrontation Clause will not bar its
admissibility at trial.” Id. (footnote omitted). Accordingly, we have rejected similar
claims regarding the right to confront confidential informants. See Williams, 930 N.E.2d
at 608 (holding that the confidential informant’s recorded statements during a controlled
buy were not offered by the State to prove the truth of those statements).
6
Although appellate counsel raised the confrontation issue generally, no specific Crawford argument was
made.
15
Here, any statements made by the CI during the transaction were not offered to
prove the truth of the matter asserted, but were offered to provide context for Heyen’s
statements and conduct. See id. Thus, even if appellate counsel had made a Crawford
argument, it would not have been a basis for reversing Heyen’s conviction on direct
appeal.
D. Habitual Offender Enhancement
The State initially alleged that Heyen was an habitual substance offender. Shortly
before trial, the State amended the habitual substance offender allegation to a general
habitual offender allegation. Heyen argues that trial counsel failed to object to the
amendment and, upon being found to be an habitual offender, his sentence was enhanced
by fourteen years as opposed to the additional three to eight years he would have faced if
he was found to be an habitual substance offender. See Ind. Code § 35-50-2-10.
Regardless of whether Heyen is arguing that appellate counsel should have raised this
issue as a claim of ineffective assistance of trial counsel claim or as a freestanding claim
of error, we are not persuaded that it would have been successful on appeal.
Our supreme court has explained, “[t]he habitual substance offender statute
punishes repeat offenders whether the underlying convictions were misdemeanors or
felonies, while the general habitual offender statute is reserved for criminals who have
repeatedly been convicted of felonies.” Hendrix v. State, 759 N.E.2d 1045, 1048 (Ind.
2001). “Where a defendant could be prosecuted under either the habitual offender statute
or the habitual substance offender statute, the prosecutor has discretion to choose either
statute.” Id. at 1047. Thus, although the basis for the habitual offender enhancement was
16
two prior felony drug-related convictions, it was within the prosecutor’s discretion to
choose which enhancement applied. Because a challenge to the amendment by trial
counsel would have been unsuccessful, Heyen has not shown that this unraised issue was
clearly stronger than the other issues raised by appellate counsel.
Conclusion
Heyen has not established that the post-conviction court erroneously denied his
petition. We affirm.
Affirmed.
NAJAM, J., and BAILEY, J., concur.
17