Opie W. Glass v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
Jan 20 2012, 8:30 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
CLERK
case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS E. Q. WILLIAMS GREGORY F. ZOELLER
Greenfield, Indiana Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
OPIE W. GLASS, )
)
Appellant-Defendant, )
)
vs. ) No. 30A05-1107-PC-373
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HANCOCK CIRCUIT COURT
The Honorable Richard D. Culver, Judge
Cause No. 30C01-0911-FC-267
January 20, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
Opie Glass appeals the denial of his petition for post-conviction relief.
We affirm.
ISSUE
The sole issue for our review is whether the post-conviction court
erred in denying Glass’s petition.
FACTS
On November 11, 2009, Glass and his girlfriend, Teri Wildman
(“Wildman”) decided to break into a business in Greenfield, Indiana in
order to obtain money to buy crack cocaine. At approximately 2:00 a.m.,
Glass and Wildman drove to Wal-Mart, where they stole two flashlights for
use in committing the burglary. The two then proceeded to the combined
retail location of the Heavenly Scent Candle Company and Martin Military
Surplus store (“the Store”), where Wildman had been employed previously.
Wildman used a key she had retained from her employment at the Store to
open the door, but Glass became concerned that an alarm may have been
activated, so the two returned to their car and drove to a nearby parking lot.
After waiting for about forty-five minutes, the pair returned to the Store and
saw that no police had arrived. The two then entered the Store, and
Wildman stood watch as Glass filled a duffle bag with numerous items,
including a laptop computer, pocket knives, and a credit card. Glass and
Wildman then placed the items in their car and left.
Glass v. State, Cause Number 30A01-1005-CR-247, slip op. at 2 (Ind. Ct. App.
December 30, 2010).
Glass was subsequently convicted by a jury of burglary as a class C felony and
two counts of theft as class D felonies. He was also adjudicated to be an habitual
offender. The trial court sentenced him to eight years for burglary enhanced by six years
for the habitual offender determination and three years for each of the theft convictions.
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The trial court further ordered all sentences to run concurrently for a total sentence of
fourteen years.
On direct appeal in 2010, Glass argued that there was insufficient evidence to
support his convictions of burglary and theft and that those convictions violated Indiana’s
prohibition against double jeopardy. This Court affirmed Glass’s convictions.
In 2011, Glass filed a petition for post-conviction relief wherein he argued that he
received ineffective assistance of trial counsel. Specifically, Glass argued that counsel
would not allow him to testify because of his prior criminal history. At the post-
conviction hearing, Glass testified that he told trial counsel several times that he wanted
to testify. According to Glass, counsel would not put him on the witness stand because
his “criminal history would hang [him].” Tr. at 8. Trial counsel was not called to testify
at the hearing, and the trial transcript was not admitted into evidence. The post-
conviction court denied Glass’s petition. Specifically, the court concluded that
considering Glass’s lengthy record and demeanor, trial counsel’s recommendation to
keep Glass off the witness stand was not inappropriate. Glass appeals the denial of his
petition.
DECISION
Glass argues that the post-conviction court erred in denying his petition for post-
conviction relief. Post-conviction proceedings do not grant a petitioner a “super appeal”
but are limited to those issues available under the Indiana Post-Conviction Rules.
Shepherd v. State, 924 N.E.2d 1274, 1280 (Ind. Ct. App. 2010). Post-conviction
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proceedings are civil in nature, and the petitioner bears the burden of proving his grounds
by a preponderance of the evidence. Id. A petitioner who appeals the denial of a post-
conviction relief petition faces a rigorous standard of review because the reviewing court
may consider only the evidence and reasonable inferences supporting the judgment of the
post-conviction court. Id. A petitioner who was denied relief must show that the
evidence as a whole leads unerringly and unmistakably to an opposite conclusion than
that reached by the post-conviction court. Id.Glass specifically argues that the post-conviction court erred in denying his
petition because trial counsel was ineffective for failing to allow him to testify. However,
Glass did not present testimony from his trial counsel at the post-conviction hearing.
When counsel is not called as a witness to testify in support of petitioner’s arguments, the
post-conviction court may infer that counsel would not have corroborated the petitioner’s
allegations. Oberst v. State¸ 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied.
The post-conviction court made such an inference here. See id.Further, Glass’s claim asks this court to assess trial counsel’s strategy, which we
will not do. See Ford v. State, 523 N.E.2d 742, 746 (Ind. 1988). Counsel’s
recommendation that Glass not testify was a tactical choice to protect his client from
exposure of his criminal record. See id. That choice should not now be second guessed
because Glass was convicted. See id. Glass has failed to show that the evidence as a
whole leads unerringly and unmistakably to an opposite conclusion than that reached by
the post-conviction court. The post-conviction court did not err in denying his petition.
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Affirmed.
BAKER, J., and BAILEY, J., concur.
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