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.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

DAVID STREETER GREGORY F. ZOELLER

Pendleton, Indiana Attorney General of Indiana

IAN MCLEAN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DAVID STREETER, )

)

Appellant-Petitioner, )

)

vs. ) No. 44A04-1110-PC-640

)

STATE OF INDIANA, )

)

Appellee-Respondent. )

APPEAL FROM THE LAGRANGE SUPERIOR COURT

The Honorable George E. Brown, Judge

Cause No. 44D01-0604-PC-1

May 28, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
2

STATEMENT OF THE CASE

David Streeter appeals the post-conviction court’s denial of his amended petition 

for post-conviction relief. Streeter presents three issues for our review, and the State 

raises an issue on cross appeal. We consolidate the issues and address the following

issues:

1. Whether Streeter timely filed his notice of appeal;

2. Whether Streeter’s guilty plea was made knowingly, voluntarily, or 

intelligently;

3. Whether Streeter received the effective assistance of trial counsel; 

and

4. Whether Streeter may argue for the first time on appeal that the trial 

court abused its discretion when it sentenced him.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 2002, Streeter pleaded guilty to one count of child molesting, as a Class A 

felony; two counts of child molesting, as Class C felonies; and to being a repeat sexual 

offender. The trial court sentenced him to an aggregate term of sixty years in the 

Department of Correction. Streeter did not appeal.

On April 10, 2006, Streeter filed his petition for post-conviction relief, which he 

amended on September 20, 2010. In his amended petition, Streeter alleged that his guilty 

plea to the Class A felony had not been made knowingly, voluntarily, and intelligently 

and that he had also been denied the effective assistance of counsel. The post-conviction 

court held an evidentiary hearing on Streeter’s petition on July 6, 2011. The court denied 

his petition on October 3. This appeal ensued.
3

DISCUSSION AND DECISION

Issue One: Notice of Appeal

We first consider the State’s assertion on cross-appeal that Streeter did not timely 

file his notice of appeal with the trial court clerk.1 According to the State, Streeter’s 

notice of appeal was due on November 2, 2011, but the post-conviction court’s 

chronological case summary does not reflect the filing of any notice of appeal. Thus, the 

State concludes, Streeter’s appeal should be dismissed.

Our motions panel considered this issue and concluded that Streeter had timely 

filed his notice of appeal. In particular, on April 23, 2012, we ordered Streeter to show 

cause as to why his appeal should not be dismissed in light of the apparently absent 

notice of appeal. Streeter, an inmate at the Pendleton Correctional Facility, timely 

responded and attached several exhibits. Specifically, Streeter attached a copy of the 

notice of appeal, which, while file stamped on December 29, 2011, showed that he had 

signed and dated the notice on October 20, 2011. Streeter also attached his request for 

remittance of funds from the Pendleton Correctional Facility to pay for the postage to 

mail the notice, which was dated October 21, 2011. And Streeter attached a statement 

from Alberta Potter, who mailed his notice from the Pendleton Correctional Facility. 

Potter stated that “[t]his piece of legal mail . . . was mailed on 10-25-11.” Appellant’s 

Response to the Court’s Order to Show Cause (May 14, 2012). Streeter then opined that 

the trial court clerk erroneously file stamped his notice of appeal for December rather 

than October.

 

1

 The version of Indiana Appellate Rule 9 in effect at the time Streeter’s notice of appeal was due 

required the notice of appeal to be filed with the clerk of the trial court. See Ind. Appellate Rule 9(A)(1) 

(2011).
4

While this court may reconsider a ruling of our motions panel, in general “we 

decline to do so in the absence of clear authority establishing that it erred as a matter of 

law.” Oxford Fin. Group, Ltd. v. Evans, 795 N.E.2d 1135, 1141 (Ind. Ct. App. 2003). 

Further, “[w]here the record reasonably permits, we prefer to dispose of appeals on their 

merits.” Swain v. Swain, 565 N.E.2d 1134, 1135 (Ind. Ct. App. 1991). The record on 

this issue is not as clear as we prefer, but Streeter has presented evidence that reasonably 

suggests he timely filed his notice of appeal. Accordingly, we will not reconsider the 

conclusion of our motions panel.

Issue Two: Guilty Plea

On appeal, Streeter first asserts that his guilty plea to child molesting, as a Class A

felony, was not made knowingly, voluntarily, or intelligently. As Streeter stated in his 

petition for post-conviction relief, he raises this issue “as [a] fundamental error issue.” 

Appellant’s App. at 19; see Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind. 1996) 

(holding that a defendant can challenge the validity of his guilty plea only through a 

petition for post-conviction relief). 

As we have explained:

[The petitioner for post-conviction relief bears] the burden of establishing 

the grounds for post-conviction relief by a preponderance of the evidence. 

Post-conviction procedures do not afford a petitioner with a super-appeal, 

and not all issues are available. Rather, subsequent collateral challenges to 

convictions must be based on grounds enumerated in the post-conviction 

rules. If an issue was known and available, but not raised on direct appeal, 

it is waived. If it was raised on appeal, but decided adversely, it is res

judicata.

In reviewing the judgment of a post-conviction court, appellate 

courts consider only the evidence and reasonable inferences supporting the 

post-conviction court’s judgment. The post-conviction court is the sole 
5

judge of the evidence and the credibility of the witnesses. Because he is 

now appealing from a negative judgment, to the extent his appeal turns on 

factual issues[, the petitioner] must convince this court that the evidence as 

a whole leads unerringly and unmistakably to a decision opposite that 

reached by the post-conviction court. We will disturb the decision only if 

the evidence is without conflict and leads only to a conclusion contrary to 

the result of the post-conviction court.

Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008) (citations omitted), trans. 

denied. “Issues not raised in a petition for post-conviction relief may not be raised for the 

first time on appeal.” Emerson v. State, 812 N.E.2d 1090, 1098-99 (Ind. Ct. App. 2004).

In his amended petition for post-conviction relief, Streeter expressly limited his 

argument to his belief that “the [S]tate was required to prove penetration” in order for 

him to have committed child molesting, as a Class A felony. Appellant’s App. at 19

(emphasis original). The post-conviction court rightly rejected this assertion, stating that 

the State had charged Streeter, and Streeter had acknowledged in establishing the factual 

basis for his plea, with performing deviate sexual conduct on his victim by placing his 

mouth on her vagina. See Ind. Code §§ 35-42-4-3(a)(1) (defining child molestation, as a 

Class A felony), 35-31.5-2-94 (defining “[d]eviate sexual conduct” as “an act involving: 

(1) the sex organ of one (1) person and the mouth or anus of another person . . . .”).

On appeal, Streeter shifts course and asserts that he did not commit deviate sexual 

conduct on his victim because he merely “touched” the child’s vagina with his mouth and 

that “what is essentially a kiss [is not] a touching offense or act so egregious” as to be 

deviate sexual conduct. Appellant’s Br. at 6. We agree with the State that Streeter’s 

argument on appeal is a new argument that was not properly preserved by first raising it 
6

to the post-conviction court. See Emerson, 812 N.E.2d at 1098-99. As such, it is waived. 

To be sure, however, Streeter’s argument is not supported by the law or the record.

2

Issue Two: Effective Assistance of Counsel

Streeter next contends that he was denied the effective assistance of trial counsel. 

A claim of ineffective assistance of counsel must satisfy two components. Strickland v. 

Washington, 466 U.S. 668 (1984). First, the defendant must show deficient performance: 

representation that fell below an objective standard of reasonableness, committing errors 

so serious that the defendant did not have the “counsel” guaranteed by the Sixth 

Amendment. Id. at 687-88. Second, the defendant must show prejudice: a reasonable 

probability (i.e., a probability sufficient to undermine confidence in the outcome) that, 

but for counsel’s errors, the result of the proceeding would have been different. Id. at 

694.

Streeter’s assertion that he was denied the effective assistance of trial counsel is 

premised on his theory that his contact with his victim could not have been classified as 

deviate sexual conduct. Streeter further asserts that his trial counsel did not perform 

effectively when he failed to have certain documents admitted as evidence. Streeter did 

not preserve either of these arguments for our review.

As with Issue Two, in his amended petition for post-conviction relief Streeter 

alleged he was denied the effective assistance of counsel only because his counsel 

“fail[ed] to recognize that[,] in order for defendant to plea[d] guilty to [C]lass A child 

 

2

 It is not clear the extent to which, if any, Streeter sought to challenge his ability to understand 

the trial proceedings in either his petition for post-conviction relief or this appeal. To the extent Streeter

intended to argue those issues, his arguments are not supported by cogent reasoning and are, therefore,

waived. See Ind. Appellate Rule 46(A)(8)(a).
7

molesting, there ha[d] to be evidence of penetration.” Appellant’s App. at 21 (emphasis 

original). Streeter’s two arguments on appeal were not raised in his amended petition for 

post-conviction relief. Again, an issue not raised in a petition for post-conviction relief 

may not be raised for the first time on appeal. Emerson, 812 N.E.2d at 1098-99. Thus, 

Streeter’s arguments are waived.

Issue Four: Sentencing

Finally, Streeter argues that the trial court abused its discretion when it sentenced 

him to an enhanced sentence. As with Streeter’s other arguments, this issue was not 

raised in his amended petition for post-conviction relief. Hence, he may not raise it on 

appeal in the first instance.3 Id.

Conclusion

In sum, we hold that the State has not shown that our motions panel erred as a 

matter of law when it determined that Streeter had timely filed his notice of appeal. 

However, none of Streeter’s arguments on the merits were properly raised in his amended 

petition for post-conviction relief. As such, he has failed to preserve his arguments for 

appellate review, and we affirm the post-conviction court’s denial of Streeter’s petition 

for relief.

Affirmed.

BAILEY, J., and BARNES, J., concur.

 

3

 We need not consider whether this issue was available for Streeter to raise on direct appeal.