Court of Appeals of Indiana | Memorandum Decision 64A04-1505-PC-293 | December 7, 2015 Page 1 of 12

MEMORANDUM DECISION

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

Mark Hurst

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Mark Hurst,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

December 7, 2015

Court of Appeals Case No. 

64A04-1505-PC-293

Appeal from the Porter Superior 

Court

The Honorable Mary R. Harper, 

Judge

Trial Court Cause No. 

64D05-1403-PC-1842

Mathias, Judge.

[1] The Porter Superior Court denied the petition for post-conviction relief filed by 

Mark Hurst (“Hurst”). Hurst appeals pro se and argues that the post-conviction 
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court erred when it rejected Hurst’s claim that his sentence was improperly 

enhanced. 

[2] We affirm. 

Facts and Procedural History

[3] The facts underlying Hurst’s conviction and sentence were set forth in our 

memorandum decision on Hurst’s direct appeal: 

In 2008, Kevin Waite (Waite) joined Facebook. Sometime in 

2010, Waite started chatting with Natalie Coats (Coats) on 

Facebook. Waite knew Coats from his freshmen year at school. 

Waite's hope was to have a relationship with Coats and, he asked 

her out on a date on several occasions. She kept on putting it off 

due to other plans but Coats eventually agreed to go out on a 

date with Waite. On December 4, 2011, Waite and Coats texted 

each other back and forth. Waite wanted to go to a movie with 

Coats but Coats wanted to go out to a bar and have fun. Coats 

then gave Waite the address to a bar, Shenanigan's. When Waite 

arrived, Coats was already there, together with her friend 

Brittany Foley (Foley), and two other men, one of which would 

later be identified as Hurst. Coats and Foley asked Waite to buy 

them a drink. Waite bought both of the girls a pitcher of beer. 

The girls introduced Waite to Hurst and the other male. The 

whole night, the group kept referring to Hurst as ‘Alfred’, so 

Waite never learned Hurst's real name.

At some point during the evening, Coats and Foley asked Waite 

if they could get a ride home and Waite told them that he would 

think about it. Foley asked Waite for his cell phone so that she 

could text him later. Foley also inquired if she could get twenty 

dollars for child support. Waite refused and he told Foley that he 

was unemployed and could not afford to give her the money. 

Hurst then approached Waite and told him that he had 
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overheard that Waite did not want to drive Coats and Foley 

home and that he was going to leave them “high and dry.” 

(Transcript pp. 93–94). As they continued talking, Hurst told 

Waite to drive him home as well. Waite asked whether it was 

necessary to drop all of them off and Hurst responded “yes you 

do if you'd like to keep your precious teeth.” (Tr. p. 95). This 

time, Waite agreed because he felt intimidated and scared. After 

that, Waite went to the restroom where he wanted to either call 

his parents or the police for help. However, Hurst followed him 

to the restroom, cornered him in the stall, and told Waite to 

show him the last people he called and texted. Waite agreed. At 

that point, Coats and Foley came into the men's restroom and 

asked if everything was alright. Out of fear, Waite told the girls 

that everything was fine, which made them leave the bathroom. 

Waite walked over to the sink to wash his hands and Hurst 

informed him “you're disrespecting me and my lady friends so 

you are going to buy pitchers of beer and shots for us.” (Tr. p. 

96). Hurst followed Waite to the bar where Waite bought 

pitchers of beer and shots for all of them. Hurst also told Waite to 

leave a ten or fifteen dollar tip for the bartender which Waite did 

out of fear. They drank the first round and Hurst demanded that 

Waite buys another round of beer and shots. At that point, Hurst 

had to leave for about 10 minutes, but before he left, he asked his 

other male friend to follow Waite to the parking lot and beat him 

up if he tried to leave.

When Hurst returned, he demanded Waite go to the ATM and 

get twenty dollars for Foley. Waite drove Hurst and Foley to an 

ATM located at a Marathon gas station close by. Waite got out 

of the car and went over to the ATM and as he was putting his 

pin number in, Hurst pushed him aside and told Waite he would 

do it himself. He then asked Waite to drive to another ATM to 

get more money. At that time, Hurst had Waite's debit card and 

cell phone. Hurst handed Waite's debit card to Foley, who 

entered the Marathon gas station to retrieve more money from 

Waite's bank account. After returning to Shenanigans, Hurst 
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demanded that they leave again to buy food. Waite drove Foley 

and Hurst to Dennys. When they got to Dennys, Foley exited the 

car and asked Waite if he wanted anything, and Waite told her 

he was okay. Waite tried to get out of the car but Hurst told him 

to remain seated. At that point, Hurst asked Waite to give him 

his driver's license so he could write down Waite's information 

just in case Waite tried to notify the police. Out of fear, Waite 

handed it to him. Hurst informed Waite that if he attempted to 

notify the police, Hurst would go over to Waite's house with his 

buddies and beat him and his family. Hurst also told Waite that 

he was debating what to do with him next, whether to beat him 

up, or take his car. Hurst added, “at least you have your life and 

a little less money.” (Tr. p 120). Waite then drove Hurst and 

Foley to Foley's friend's trailer. When they got to their 

destination, Hurst and Foley got out of the car. Hurst told Waite 

his cellphone was in the back seat, he kicked Waite's car, and 

said, “go, go, go, you know, I'm letting you go.” (Tr. p 122).

Hurst v. State, No. 64A03-1209-CR-391, 2013 WL 3874753, slip op. at 2-4 (Ind. 

Ct. App. July 25, 2013). 

[4] As a result, the State charged Hurst on January 11, 2012, with Class C felony 

robbery and Class D felony criminal confinement. On March 20, 2012, the 

State amended the charging information to add an allegation that Hurst was a

habitual offender. A jury trial was held on April 23, 25, and 26, 2012, at the 

conclusion of which the jury found Hurst guilty as charged. On August 14, 

2012, the trial court sentenced Hurst to six years for his robbery offense 

enhanced by eight years because of his habitual offender adjudication. The 

court also sentenced him to a concurrent sentence of two years for the criminal

confinement charge. 
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[5] On direct appeal, Hurst argued that the trial court abused its discretion by 

admitting evidence regarding: Hurst’s prior convictions for residential entry and 

theft, a video recording of Hurst and his victim at the ATM machine, and 

testimony regarding a photograph used to identify Hurst. We rejected these 

arguments and affirmed Hurst’s convictions. Id., slip op. at 13. 

[6] On February 20, 2014, Hurst filed a petition for post-conviction relief, claiming 

inter alia that the trial court improperly imposed a doubly enhanced sentence. 

Then, on March 24, 2014, Hurst filed a motion to correct erroneous sentence, 

again claiming that his sentence was improperly doubly enhanced. The trial 

court denied this motion on July 15, 2014. Hurst then filed an amended petition 

for post-conviction relief on September 9, 2014, again repeating his sentencing 

claim. The trial court held an evidentiary hearing on Hurst’s post-conviction 

petition on March 26, 2015, but Hurst presented no evidence. The trial court 

entered an order denying Hurst’s petition on April 22, 2015. Hurst now appeals. 

Post-Conviction Standard of Review

[7] In addressing Hurst’s claims, it bears repeating that post-conviction proceedings 

are not “super appeals” through which convicted persons can raise issues they 

failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d 389, 391 

(Ind. 2002). Post-conviction proceedings instead afford petitioners a limited 

opportunity to raise issues that were unavailable or unknown at trial and on 

direct appeal. Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). The postconviction petitioner bears the burden of establishing grounds for relief by a 

preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind. 2008). 
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Thus, on appeal from the denial of post-conviction relief, the petitioner appeals 

from a negative judgment. Id. To prevail on appeal from the denial of postconviction relief, the petitioner must show that the evidence as a whole leads 

unerringly and unmistakably to a conclusion opposite that reached by the postconviction court. Id. at 643-44. 

[8] Where, as here, the post-conviction court makes findings of fact and 

conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we 

must determine if the court’s findings are sufficient to support its judgment. 

Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 

N.E.2d 962. Although we do not defer to the post-conviction court’s legal 

conclusions, we review the post-conviction court’s factual findings under a 

clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or 

judge the credibility of witnesses, and we will consider only the probative 

evidence and reasonable inferences flowing therefrom that support the postconviction court’s decision. Id. 

Discussion and Decision

[9] Hurst claims that the trial court erred in applying the habitual offender 

enhancement to his sentence. Although Hurst’s appellate argument is sparse, 

from what we can discern, he contends that the habitual offender enhancement 

was improper because one of the predicate felonies supporting the habitual 

offender determination was itself allegedly enhanced from a misdemeanor to a 

felony. 
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[10] The general rule regarding multiple sentence enhancements is that a trial court 

cannot impose a double enhancement absent explicit legislative direction. 

Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010). Three types of statutes 

authorize enhanced sentences for recidivist offenders: the general habitual 

offender statute; specialized habitual offender statutes; and progressive-penalty 

statutes. Dye v. State, 972 N.E.2d 853, 857 (Ind. 2012), aff’d on reh’g, 984 N.E.2d 

625 (Ind. 2013). 

[11] Here, the State alleged that Hurst had two prior, unrelated felonies: a 1998 

conviction in Illinois for residential burglary and theft and a 2007 conviction in 

Indiana for Class C felony battery. Hurst makes no challenge to the validity of 

his Illinois conviction and instead focuses his post-conviction argument on the 

validity of his 2007 Indiana conviction for felony battery. At the habitual 

offender portion of the trial, Hurst stipulated to the fact that, on August 2, 2007, 

he was convicted of Class C felony battery causing serious bodily injury for an 

incident that occurred on July 23, 2005. He was sentenced for this conviction 

on August 31, 2007, to eight years in the Department of Correction. 

[12] Hurst notes that he was originally charged with Class A misdemeanor battery, 

but at some point, the charge was amended to Class C felony battery causing 

serious bodily injury—the crime for which he was convicted. Hurst claims that 

because this offense was elevated to a Class C felony, it cannot form the basis of 

his habitual offender adjudication. For a variety of reasons, Hurst’s argument 

fails.
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A. Waiver by Procedural Default

[13] First, nothing in the record suggests that this claim was somehow unknown or 

unavailable to Hurst during his direct appeal. To the contrary, his claim of 

sentencing error was available on direct appeal, and by failing to present it on 

direct appeal, it is now waived by procedural default. See Bunch v. State, 778 

N.E.2d 1285, 1289 (Ind. 2002) (holding that defendant’s claim of sentencing 

error was procedurally defaulted on post-conviction where the sentencing issue 

was available but not raised on direct appeal); Taylor v. State, 780 N.E.2d 430, 

435 (Ind. Ct. App. 2002) (following Bunch in holding that defendant’s claim of 

sentencing error was unavailable in petition for post-conviction relief where the 

issue could have been raised on direct appeal but defendant filed no direct 

appeal); see also Collins v. State, 817 N.E.2d 230, 232-33 (Ind. 2004) (adopting 

holding in Taylor). 

B. Res Judicata

[14] Even if Hurst’s claim was not procedurally defaulted, he would still not prevail. 

On March 24, 2014, after his direct appeal, and after filing his first petition for 

post-conviction relief, Hurst filed a motion to correct erroneous sentence.1 In his 

motion, Hurst claimed that his habitual offender enhancement was improper 

 

1

 A motion to correct erroneous sentence provides prompt, direct access to an uncomplicated legal process 

for correcting an erroneous or illegal sentence. Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004). A motion 

to correct sentence is a remedy that is only appropriate when the sentence is erroneous on its face. Id. at 786. 

A motion to correct sentence should be narrowly confined to claims apparent from the “face of the 

sentencing judgment, and the ‘facially erroneous’ prerequisite should henceforth be strictly applied.” Id. at 

787. If a sentencing claim is not facially apparent, then a motion to correct sentence is not a proper remedy. 

Id. 
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because it was based on his battery conviction which had itself been enhanced. 

In his original motion to correct erroneous sentence, Hurst claimed that his 

conviction for battery had been enhanced to robbery. The trial court noted that 

battery cannot be elevated to robbery and that battery is itself never elevated 

based upon a prior conviction. Appellant’s App. pp. 10-11. In his motion to 

correct error from the trial court’s denial of his motion to correct erroneous 

sentence, Hurst apparently corrected his argument to refer to his conviction for 

battery. See id. at 13. The trial court denied the motion to correct erroneous 

sentence on its merits. 

[15] Hurst presents essentially this same argument once again on post-conviction 

review. The trial court considered Hurst’s motion to correct erroneous sentence 

on the merits and concluded that his claim of sentencing error was without 

merit. Although Hurst filed a motion to correct error from the trial court’s 

denial of his motion to correct erroneous sentence, which the trial court denied, 

nothing in the record indicates that he filed an appeal from this denial. Thus, a 

final judgment has been entered on the merits of the claim Hurst now presents 

in his petition for post-conviction review. 

[16] Res judicata prevents the repetitious litigation of disputes that are essentially the 

same. Wright v. State, 881 N.E.2d 1018, 1021-22 (Ind. Ct. App. 2008), trans. 

denied. The claim preclusion branch of res judicata is applicable in this case. 

Claim preclusion applies where a final judgment on the merits has been 

rendered and acts as a complete bar to a subsequent action on the same issue or 

claim between those parties and their privies. Id. In order for a claim to be 
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precluded under the doctrine of res judicata, the following four requirements 

must be satisfied: (1) the former judgment must have been rendered by a court 

of competent jurisdiction; (2) the former judgment must have been rendered on 

the merits; (3) the matter now in issue was, or could have been, determined in 

the prior action; and (4) the controversy adjudicated in the former action must 

have been between the parties to the present suit or their privies. Id. 

[17] Here, nothing in the record indicates that the trial court that denied Hurst’s 

motion to correct erroneous sentence was anything other than a court of 

competent jurisdiction; the trial court denied the motion on its merits; the issue 

of Hurst’s sentence was at issue and determined in the motion; and the parties 

are the same. We therefore conclude that Hurst’s attempt to relitigate the issue 

of the propriety of his habitual offender enhancement is precluded as res 

judicata. See Saunders v. State, 794 N.E.2d 523, 527 (Ind. Ct. App. 2003) 

(holding that defendant’s post-conviction claim that his sentence was 

inappropriate was precluded by res judicata where the issue of the 

reasonableness of his sentence was decided on direct appeal). 

C. Waiver for Failure to Present a Cogent Argument

[18] We further conclude that Hurst’s claim is waived for failure to present a cogent 

argument. A party waives any issue raised on appeal where the party fails to 

develop a cogent argument or provide adequate citation to authority and 

portions of the record. Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 

2005) (citing Ind. App. Rule 46(A)(8)(a)). Although Hurst is proceeding pro se, 

pro se litigants are held to the same standard regarding rule compliance as are 
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attorneys duly admitted to the practice of law and must comply with the 

appellate rules to have their appeal determined on the merits. Id. 

[19] Hurst cites to no authority to support his contention. The few cases he does cite 

simply stand for the proposition that a trial court has a duty to correct an 

erroneous sentence, see Senn v. State, 766 N.E.2d 1190, 1194 (Ind. Ct. App. 

2002), and that a facially erroneous sentence may be corrected even if not 

presented in motion to correct error. See Watkins v. State, 588 N.E.2d 1342, 1344 

(Ind. Ct. App. 1992) (referring to former requirement that a party file a motion 

to correct error to preserve an issue for appeal). 

D. Hurst’s Claim is Meritless

[20] Lastly, even if we were to overlook that Hurst’s current claim is barred by 

procedural default, res judicata, and waiver, Hurst’s claim is without merit. 

Hurst claims that his sentence was subject to double enhancement. He is 

incorrect. 

[21] Nothing in the record supports Hurst’s contention that his conviction for Class 

C felony battery was enhanced. Instead, it appears that the State initially 

charged Hurst with Class A misdemeanor battery but later amended the charge 

to Class C felony battery causing serious bodily injury, the crime for which he 

was ultimately convicted. Thus, Hurst was not convicted under a “progressive 

penalty” statute that enhances a crime based upon the commission of a prior 

crime of the same or similar sort. See Dye, 972 N.E.2d at 857. 
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[22] The bottom line is that Hurst was not subject to “double enhancement” because 

his current sentence was enhanced only once by the general habitual offender 

statute. The fact that his prior conviction happened to be a more serious form of 

battery is inapposite. 

Conclusion

[23] For all of these reasons, we conclude that the trial court did not clearly err in 

denying Hurst’s petition for post-conviction relief. 

[24] Affirmed. 

Baker, J., and Bailey, J., concur.