Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 1 of 19

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

Buford G. Lee

Pendleton, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Buford G. Lee,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 29, 2016

Court of Appeals Case No.

10A04-1505-PC-525

Appeal from the Clark Circuit

Court

The Honorable Vicki L. 

Carmichael, Judge

Trial Court Cause No.

10C04-1405-PC-7

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 2 of 19

STATEMENT OF THE CASE

[1] Appellant-Petitioner, Buford G. Lee (Lee), appeals the post-conviction court’s 

denial of his petition for post-conviction relief, in which he had challenged his 

conviction for dealing a narcotic drug within 1,000 feet of a family housing 

complex, a Class A felony, Ind. Code § 35-48-4-1(b)(3)(B)(iii) (2013).

[2] We affirm.

ISSUES

[3] Lee raises seven issues on appeal, which we consolidate and restate as the 

following three issues:

(1) Whether the post-conviction court erred by failing to issue findings of fact 

and conclusions of law on all issues presented for review;

(2) Whether Lee received ineffective assistance of trial counsel;

(3) Whether the post-conviction court erred by failing to continue the postconviction hearing in order for Lee to subpoena additional witnesses.

FACTS AND PROCEDURAL HISTORY

[4] On September 17, 2013, and September 23, 2013, the Jeffersonville Police 

Department utilized a confidential informant to purchase heroin from Lee. On 

both occasions, the confidential informant met with Lee at the Jeffersonville 

Housing Authority in Jeffersonville, Clark County, Indiana, where he 

exchanged law enforcement funds for approximately .15 grams and .25 grams, 

respectively, of heroin. During the controlled drug buys, the detectives 
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 3 of 19

maintained surveillance, and the confidential informant was equipped with an 

electronic recording device.

[5] On October 8, 2013, the State filed an Information, charging Lee with Count I, 

dealing a narcotic drug within 1,000 feet of a family housing complex, a Class 

A felony, I.C. § 35-48-4-1(b)(3)(B)(iii) (2013); Count II, possession of a narcotic 

drug within 1,000 feet of a family housing complex, a Class B felony, I.C. § 35-

48-4-6(b)(2)(B)(iii) (2013); Count III, dealing a narcotic drug within 1,000 feet 

of a family housing complex, a Class A felony, I.C. § 35-48-4-1(b)(3)(B)(iii) 

(2013); Count IV, possession of a narcotic drug within 1,000 feet of a family 

housing complex, a Class B felony, I.C. § 35-48-4-6(b)(2)(B)(iii) (2013); and 

Count V, conspiracy to commit dealing a narcotic drug within 1,000 feet of a 

family housing complex, a Class A felony, I.C. §§ 35-41-5-2; -48-4-1(b)(3)(B)(iii) 

(2013). The State also charged Lee as a habitual offender pursuant to Indiana 

Code section 35-50-2-8(a).

[6] On October 9, 2013, an arrest warrant was issued, and Lee was taken into 

custody. On October 16, 2013, the trial court held Lee’s initial hearing, during 

which Lee requested a fast and speedy trial, and the trial court appointed a 

public defender to represent Lee. On October 21, 2013, a public defender, 

Christopher Sturgeon (Attorney Sturgeon), entered his appearance on Lee’s 

behalf. Within days of taking Lee’s case, Attorney Sturgeon issued subpoenas 

to the detectives involved in the controlled drug transactions for depositions, 

which were conducted on December 4, 2013.
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 4 of 19

[7] A jury trial commenced on December 10, 2013. On the second day of trial, the 

State, while examining one of the detectives involved in the case, offered into 

evidence the video recording of at least one of the controlled drug purchases. 

Shortly thereafter, Lee—via Attorney Sturgeon—moved for a mistrial when the 

State elicited testimony from the detective which purportedly violated a motion 

in limine. The trial court called for a recess and met with the attorneys in 

chambers, during which the State proposed a plea deal. Under the terms of the 

plea deal, Lee would plead guilty to one Count of dealing in a narcotic drug as 

a Class A felony in exchange for the State’s dismissal of the remaining charges. 

Furthermore, the State would also dismiss all of the charges in two other 

pending cases, which included a Class A felony charge for dealing cocaine or a 

narcotic drug, two Class B felony charges for possession of cocaine or a narcotic 

drug, and two habitual offender charges. Attorney Sturgeon presented the offer 

to Lee and advised him to accept, which Lee did. The trial court subsequently 

advised Lee of his rights and found a factual basis for the plea. After finding 

that Lee’s plea was made freely and voluntarily, the trial court accepted the plea 

agreement and entered a judgment of conviction for a Class A felony charge of 

dealing in a narcotic drug.

[8] On January 13, 2014, the trial court held a sentencing hearing. At the 

beginning of the hearing, Lee informed the trial court that he wished to 

withdraw his guilty plea based on information that he recently learned after his 

co-defendant, Paul Overton (Overton), provided him with copies of the 

depositions of the detectives who were involved in the controlled drug 
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 5 of 19

transactions. Because the trial court had already accepted the plea agreement 

and entered a judgment of conviction, it declined Lee’s request and advised him 

that he could file a petition for post-conviction relief. Thereafter, the trial court 

sentenced Lee to a term of twenty-five years, with twenty years executed in the 

Indiana Department of Correction and five years suspended to probation.

[9] On July 21, 2014, Lee, pro se, filed an Amended Petition for Post-Conviction 

Relief. In his petition, Lee alleged that Attorney Sturgeon had provided 

ineffective assistance of counsel, in relevant part, by failing to adequately 

investigate prior to trial and refusing to file the motions requested by Lee; by 

withholding evidence from Lee; and by pressuring Lee to sign the plea deal 

despite the State’s lack of evidence. Lee further alleged that the trial court had 

demonstrated prejudice by allowing the detective to accompany the attorneys 

into the trial judge’s chambers after the detective testified about Lee’s prior bad 

acts in violation of a motion in limine; by failing to rule on an objection that the 

jury had been prejudiced by the detective’s testimony; and by denying Lee’s 

right to withdraw from the guilty plea upon discovering certain evidence in the 

depositions that were withheld by Attorney Sturgeon. On November 17, 2014, 

the post-conviction court conducted a post-conviction relief hearing. At the 

close of the evidence, the post-conviction court granted the parties thirty days in 

which to file proposed findings of fact and conclusions of law. On December 

15, 2014, the State submitted its proposed order. On April 14, 2015, Lee 

submitted his proposed findings of fact and conclusions of law.
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 6 of 19

[10] On April 20, 2015, the post-conviction court issued its Findings of Fact, 

Conclusions of Law and Judgment, denying Lee’s petition. In particular, the 

post-conviction court concluded that Lee failed to establish that he received 

ineffective assistance of counsel and further determined that Lee failed to 

establish that he was prejudiced by any of the other alleged errors. The postconviction court stated that it was

persuaded that if [Lee’s] case had been decided by the jury there 

is [a] high probability that he would not have received an 

acquittal. The large amount of evidence including audio and 

video of [Lee] and his actions during the drug transaction 

presented in the probable cause affidavit show the end result 

would have been conviction even had counsel acted as [Lee] 

suggests. The greater the amount of evidence showing [Lee] 

committed the crime the greater his burden to show he was 

prejudiced.

(Appellant’s Br. p. 33). Additionally, the post-conviction court found no error 

in the trial court’s refusal to allow Lee to withdraw from his guilty plea because 

“to do so would have resurrected two cases with serious drug charges,” and 

“[t]he demand on judicial resources of granting [Lee] a new trial on three cases 

appears unwarranted.” (Appellant’s Br. p. 33).

[11] Lee now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[12] A post-conviction proceeding affords the petitioner an “opportunity to raise 

issues that were unknown or unavailable at the time of the original trial or the 
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 7 of 19

direct appeal.” Maymon v. State, 870 N.E.2d 523, 526 (Ind. Ct. App. 2007) 

(citing Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 

1164 (2002)), trans. denied. However, a post-conviction proceeding does not 

constitute “a super appeal,” and it “provide[s] only a narrow remedy for 

subsequent collateral challenges to convictions.” Id. (citing Ben-Yisrayl, 738 

N.E.2d at 258). Post-conviction proceedings are civil in nature, and, therefore, 

the petitioner bears the burden of establishing his grounds for relief by a 

preponderance of the evidence. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 

2002), cert. denied, 540 U.S. 830 (2003); see Ind. Post-Conviction Rule 1(5).

[13] When appealing the denial of a petition for post-conviction relief, “the 

petitioner stands in the position of one appealing from a negative judgment.” 

Willoughby v. State, 792 N.E.2d 560, 562 (Ind. Ct. App. 2003), trans. denied. Our 

court does not reweigh evidence or assess the credibility of witnesses. Id.

In order to prevail, the petitioner must show that the evidence is 

without conflict and leads unerringly and unmistakably to a 

conclusion opposite that reached by the post-conviction court. It 

is only where the evidence is without conflict and leads to but 

one conclusion, and the post-conviction court has reached the 

opposite conclusion, that the decision will be disturbed as being 

contrary to law.

Id. (internal citation and quotation marks omitted).

II. Post-Conviction Court’s Findings of Fact and Conclusions of Law

[14] Lee challenges the post-conviction court’s issuance of factual findings and 

conclusions of law. Pursuant to Indiana Post-Conviction Rule 1(6), the post-
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 8 of 19

conviction court is required to “make specific findings of fact[] and conclusions 

of law on all issues presented.” On appeal, our court accepts the postconviction court’s factual findings “unless they are ‘clearly erroneous’” but we 

owe no deference to the post-conviction court’s legal conclusions. Stevens, 770 

N.E.2d at 746 (quoting Ind. Trial Rule 52(A)).

[15] Here, Lee asserts that “the problem is the trial court adopted the findings of the 

[State] when the [State] submitted [its] findings before [Lee] filed his Findings 

of Fact and Conclusions of Law. Which shows the court did not answer the 

issues presented for review.” (Appellant’s Br. p. 13). We find no basis for this 

contention in the record. The Chronological Case Summary (CCS) establishes 

that the State filed its proposed findings and conclusions on December 15, 

2014, which was within the thirty-day deadline following the post-conviction 

hearing. Lee filed his proposed findings and conclusions on April 14, 2015. 

Thereafter, on April 20, 2015, the post-conviction court issued its Findings of 

Fact, Conclusions of Law and Judgment. Thus, while the post-conviction court 

did adopt the proposed findings and conclusions of the State verbatim, it did 

not do so prior to receiving Lee’s proposed order for consideration.

[16] Although the wholesale adoption of a party’s proposed findings is not 

prohibited, our supreme court has noted that such a practice “erodes confidence 

that they reflect the considered judgment of the post-conviction court.” 

Thompson v. State, 796 N.E.2d 834, 840 (Ind. Ct. App. 2003) (citing Stevens, 770 

N.E.2d at 762), trans. denied. As support for his position that the postconviction court’s adoption of the State’s proposed findings reveals that it failed 
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 9 of 19

to adequately consider all of the issues, Lee vaguely argues that the “trial court 

would have known it could not deny an affirmative right to terminate counsel.” 

(Appellant’s Br. p. 14). Under a different section of his appellate brief, Lee 

explains that on November 15, 2013, he submitted a notarized request to the 

trial court to terminate Attorney Sturgeon and proceed pro se, but the CCS lacks 

any indication that such a document was ever filed, and the trial court never 

acknowledged the request.

[17] We agree with Lee that the post-conviction court’s findings do not address the 

matter of an alleged violation of his Sixth Amendment right to selfrepresentation; however, this is because Lee never raised this issue in his 

petition for post-conviction relief. Because Lee never presented the issue of a 

Sixth Amendment violation to the post-conviction court for consideration, it 

cannot be said that the post-conviction court erred in failing to address this 

matter in its factual findings and legal conclusions. Moreover, Lee has waived 

review of any Sixth Amendment violation by raising the issue for the first time 

on appeal. See Stevens, 770 N.E.2d at 746 (“Any ‘[i]ssues not raised in the 

petition for post-conviction relief may not be raised for the first time on postconviction appeal.’” (alteration in original) (quoting Allen v. State, 749 N.E.2d 

1158, 1171 (Ind. 2001))).1

 

1

 Thus, we do not address Lee’s separate claim that he was denied due process of law by virtue of the trial 

court’s failure to allow him to terminate Attorney Sturgeon and proceed pro se.
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 10 of 19

III. Ineffective Assistance of Trial Counsel

[18] Lee next claims that Attorney Sturgeon provided ineffective assistance of 

counsel. To prevail on an ineffective assistance of counsel claim, a petitioner 

must establish “both that his counsel’s performance was deficient and that the 

petitioner was prejudiced by the deficient performance.” McCullough v. State, 

987 N.E.2d 1173, 1176 (Ind. Ct. App. 2013) (citing Strickland v. Washington, 466 

U.S. 668, 687 (1984), reh’g denied). A claim of ineffective assistance of counsel 

will be rejected if the petitioner fails to satisfy either prong. Id. Thus, if we are 

able to “dismiss an ineffective assistance claim on the prejudice prong, we need 

not address whether counsel’s performance was deficient.” Id. (quoting Lee v. 

State, 892 N.E.2d 1231, 1233 (Ind. 2008)).

[19] An attorney’s performance is considered deficient “if it falls below an objective 

standard of reasonableness based on prevailing professional norms.” Id. It is 

well established that “[c]ounsel is accorded considerable discretion in choosing 

strategy and tactics, and we will accord those decisions deference.” Id. We are 

mindful that there is a strong presumption “that counsel rendered adequate 

assistance and made all significant decisions in the exercise of reasonable 

professional judgment.” Id. In order to establish that he was prejudiced by 

Attorney Sturgeon’s performance, Lee “must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. (citations omitted).
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 11 of 19

[20] According to Lee, when Attorney Sturgeon presented the State’s plea deal to 

Lee in the midst of the trial, Attorney Sturgeon purportedly informed him that 

he would be found guilty because the detectives would testify that they 

witnessed Lee handing the drugs to the confidential informant (although there 

is no support in the record for this supposed conversation between Attorney 

Sturgeon and Lee). However, after Lee pled guilty, he received a copy of the 

detectives’ depositions from Overton, his co-defendant. Based on his review of 

the depositions, the probable cause affidavit, and the video recordings, Lee 

asserts that the evidence establishes that it was actually Overton who personally 

delivered the heroin to the confidential informant. Thus, Lee now contends 

that he

chose to plead guilty on the advice of [Attorney Sturgeon] 

knowing the facts of his case, specifically, the statement of the 

detectives as to what the detectives would testify too [sic]. [Lee] 

did not know of the depositions and trusted [Attorney Sturgeon] 

to let him know the facts of the case, and all information about 

the case.

(Appellant’s Br. p. 15). According to Lee, “[t]his clearly shows the 

involuntariness of the plea.” (Appellant’s Br. p. 16).2

 “Moreover, when [Lee] 

requested in writing to [Attorney Sturgeon] that he wanted to withdraw [the] 

 

2

 In his appellate brief, Lee raises a separate argument that he is entitled to post-conviction relief because his 

plea was neither voluntarily nor intelligently made. However, this argument is simply a reiteration of his 

ineffective assistance of counsel claim. Moreover, Lee has waived such an argument on appeal because he 

did not claim in his post-conviction petition that his plea was involuntary and unintelligent, and he has 

further failed to develop such a cogent, appropriately-cited argument on appeal. See Stevens, 770 N.E.2d at

746; Ind. Appellate Rule 46(A)(8)(a).
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 12 of 19

plea, [Attorney Sturgeon] failed to file [a] [m]otion to [w]ithdraw [the] [p]lea”

pursuant to Indiana Code section 35-35-1-4(b). (Appellant’s Br. p. 16).3

[21] The decision to enter into a guilty plea, although unquestionably influenced by 

an attorney’s advice, ultimately belongs to the defendant. Manzano v. State, 12 

N.E.3d 321, 326-27 (Ind. Ct. App. 2014) (quoting State v. Van Cleave, 674 

N.E.2d 1293, 1301 (Ind. 1996)), trans. denied; cert. denied, 135 S.Ct. 2376 (2015). 

As such, a claim of ineffective assistance of counsel relating to a guilty plea is 

distinct “from the tactical or investigatory steps that are the bases of most 

claims of ineffective assistance of counsel.” Id. at 326. There are two categories 

of claims for ineffective assistance of trial counsel following a guilty plea: “(1)

failure to advise the defendant on an issue that impairs or overlooks a defense 

and (2) an incorrect advisement of penal consequences.” McCullough, 987 

N.E.2d at 1176 (citing Segura v. State, 749 N.E.2d 496, 500 (Ind. 2001)).

[22] In this case, Lee contends that Attorney Sturgeon misadvised him as to what 

the State’s evidence would reveal, which led him to plead guilty. Essentially, 

Lee argues that his innocence defense was impaired by Attorney Sturgeon’s 

 

3

 Although raised in his petition for post-conviction relief, Lee does not contend on appeal that the trial court 

abused its discretion by declining to allow him to withdraw from the guilty plea; thus, the issue is waived. 

See App. R. 46(A)(8)(a). Rather, Lee’s argument is limited to an ineffective assistance of counsel claim based 

on Attorney Sturgeon’s advice about the State’s evidence and his failure to file a written motion to withdraw 

the plea agreement. However, Lee has waived his argument regarding Attorney Sturgeon’s failure to file a 

written motion to withdraw the plea agreement as Lee failed to raise the issue in his petition for postconviction relief. See Stevens, 770 N.E.2d at 746. We note that at the post-conviction hearing, Lee simply 

asked Attorney Sturgeon whether he had received a letter from Lee indicating Lee’s desire to withdraw from 

the plea, but Lee did nothing to further develop this possible claim of error before the post-conviction court.
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 13 of 19

misinformation, and he would not have pled guilty had he realized that the 

evidence actually revealed that it was Overton who physically handed the 

narcotics to the confidential informant. Therefore, Lee’s claim falls into the 

first category of ineffective assistance claims relating to guilty pleas: a failure to 

advise the defendant on an issue that impairs or overlooks a defense. In order 

to prevail, Lee must show

a reasonable probability of success at trial if the alleged error is 

one that would have affected a defense. . . . A new trial is of 

course necessary if an unreliable plea has been accepted. But its 

costs should not be imposed needlessly, and that would be the 

result if the petitioner cannot show a reasonable probability that 

the ultimate result—conviction—would not have occurred 

despite counsel’s error as to a defense.

Id. at 1177 (ellipsis in original) (quoting Segura, 749 N.E.2d at 503).

[23] We find that Lee has failed to satisfy his burden of establishing that the result of 

his proceeding would have been different even if Attorney Sturgeon had 

advised Lee that the detectives never witnessed Lee personally handing heroin 

to the confidential informant. As the State points out, during at least one of the 

controlled drug transactions at the Jeffersonville Housing Authority, Lee was 

observed by a detective and recorded on video as he accepted money from the 

confidential informant. Lee then handed the purchased heroin to Overton, 

who, in turn, transferred the drugs to the confidential informant. This is 

sufficient to support Lee’s conviction for dealing in narcotics as a Class A 

felony. See I.C. § 35-48-4-1(a)(1)(C),(b)(3)(B)(iii) (2013) (providing that it is a 
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 14 of 19

Class A felony to knowingly or intentionally deliver a narcotic drug within 

1,000 feet of a family housing complex); see also I.C. § 35-48-1-11 (defining 

“delivery” for the purposes of delivering a controlled substance as “(1) an actual 

or constructive transfer from one (1) person to another of a controlled 

substance, whether or not there is an agency relationship; or (2) the organizing 

or supervising of an activity described in subdivision (1)”). Thus, based on the 

ample evidence of his guilt, Lee has failed to establish a reasonable probability 

that he would not have been convicted had he proceeded with the jury trial.

[24] Moreover, if Lee had declined the plea agreement, he would have been subject 

to criminal liability for additional charges in the present case, including: two 

Class A felonies for dealing in narcotics and conspiracy to commit dealing in 

narcotics, two Class B felonies for possession of narcotics, and a habitual 

offender charge. Based on the fact that Lee’s second controlled drug 

transaction was also recorded, there is a reasonable probability that the jury 

would have convicted him of some or all of these additional charges. 

Furthermore, had Lee not accepted the plea agreement, he would not have 

received the benefit of having his charges dismissed in two unrelated cases.

[25] Lee also claims that Attorney Sturgeon was ineffective by failing “to object to 

the fact there was no Pre Sentence Report to rely on to sentence [Lee], because 

Indiana Statute mandates a Presentence Report for a person pleading or being 

convicted of a felony charge.” (Appellant’s Br. p. 17). Lee further contends 

that he did not receive a fair sentencing hearing because he
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 15 of 19

would have submitted additional witnesses that would have 

testified about the character of [Lee] and the other positive things 

[Lee] have [sic] done, and other issues. These issues would have 

allowed the [trial court] to consider mitigating circumstances had 

[Lee] been found guilty after trial or if he wished to proceed with 

pleading guilty and receive sentence.

(Appellant’s Br. p. 19). We find that Lee has waived this issue for review by 

raising it for the first time on appeal. See Stevens, 770 N.E.2d at 746.

[26] Waiver notwithstanding, we find that Lee’s argument is not only meritless, it is 

also a blatant misrepresentation of the facts. The transcript of the sentencing 

hearing, which was filed as an exhibit with the post-conviction court, makes it 

abundantly clear that a pre-sentence investigation (PSI) report was completed 

prior to sentencing. In fact, at the beginning of the sentencing hearing, the trial 

court stated:

Probation has indicated to me that there was a problem in the 

preparation of the PSI, although they have done the best they 

can, produced one [sic]. But that problem, as indicated in a letter 

of January 7th, 2014, was that . . . Lee, while in custody[,] stated 

that he did not plan on accepting a [p]lea [a]greement currently 

filed with the [c]ourt and was not going to speak with the 

[p]robation [o]fficer assigned to do the PSI. And therefore she 

has done the best she could with the . . . limited information that 

she had.

(Exh. C-1, p. 4). Thereafter, Attorney Sturgeon acknowledged that he had 

received a copy of the PSI report and had provided the same to Lee. Thus, it is 

absurd for Lee to now attempt to argue that Attorney Sturgeon was somehow 
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 16 of 19

ineffective in light of the fact that any inadequacies in the PSI report were 

purely the result of Lee’s own willful refusal to cooperate with the probation 

department. Therefore, we conclude that Lee did not receive ineffective 

assistance of counsel.

IV. Subpoenas

[27] Lastly, Lee claims that the post-conviction court erred by refusing to continue 

the post-conviction hearing in order for Lee to secure additional witnesses—

specifically, the detectives who investigated his case; his co-defendant, Overton; 

and another inmate who was not directly linked to Lee’s case. Pursuant to 

Indiana Post-Conviction Rule 1(9):

If the pro se petitioner requests 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. If 

the court finds the witness’ testimony would be relevant and 

probative, the court shall order that the subpoena be issued. If 

the court finds the proposed witness’ testimony is not relevant 

and probative, it shall enter a finding on the record and refuse to 

issue the subpoena.

[28] According to the CCS, the post-conviction hearing was initially set for August 

5, 2014, but was later reset to September 15, 2014. On July 3, 2014, Lee filed a 

Praecipe for Issuance of Subpoena(s) to secure Attorney Sturgeon, Overton, 

another inmate, and three Jeffersonville Police Department detectives as 

witnesses on September 15, 2014. The trial court granted Lee’s request, and on 

August 6, 2014, the subpoenas were issued, which directed Lee’s witnesses to 
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 17 of 19

appear on September 15, 2014. However, on August 19, 2014, the State filed 

an objection to the issuance of subpoenas based on Lee’s failure to submit 

affidavits with the witnesses’ expected testimony. On August 26, 2014, the 

post-conviction court ordered Lee to submit affidavits specifying the substance 

of the witnesses’ testimony and why their testimony was required. Although 

the subpoenas were already served, it does not appear that Lee ever complied 

with the post-conviction court’s order to file affidavits. Subsequent to the 

issuance of the subpoenas, the post-conviction hearing date was rescheduled to 

November 17, 2014, due to Attorney Sturgeon’s unavailability. Lee never 

requested that the subpoenas be re-issued to reflect the new hearing date.

[29] At the post-conviction hearing, Lee called Attorney Sturgeon, his brother, and 

his wife to testify. Thereafter, even though Lee had not subpoenaed his 

remaining witnesses for this hearing date, Lee nevertheless requested that the 

post-conviction court continue the matter in order to secure these witnesses. 

Instead, the post-conviction court asked Lee to explain to what he would expect 

his witnesses to testify. Lee elaborated that the three detectives “would testify 

to the giving of deposition of the things that took place as far as what transpired 

in my case.” (Tr. p. 65). Additionally, Lee stated that Overton would testify 

that Overton overheard Attorney Sturgeon informing Lee

that I have no grounds to get anything suppressed. I should take 

the plea because if I don’t take the plea, I’m going to get fifty (50) 

years on the dope case because the police, they going to take me 

to trial for the cocaine case and the officer was supposed to testify 

that he seen me throw it, that what give me fifty (50) years on a 

Class B [f]elony with a habitual . . . which there’s no way 
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 18 of 19

possible I can get fifty (50) years on that case. And Mr. Overton 

would also testify that him giving me copies of the deposition 

because I had, because of the results of what took place during 

the trial date.

(Tr. pp. 66-67). Finally, as to Lee’s last witness, a fellow inmate, Lee stated 

that this witness

would testify to being in the hallway at another time when 

[Attorney] Sturgeon came to meet with me and we were 

discussing the strategy of my case and as far as, like, what 

evidence they had as far as the, him telling me that he seen the 

tapes and I asked him, you know, if you seen the tapes, let me 

see the tapes, and he’d tell me, nah, that he can’t [do] that, and 

him lunging, making an aggressive movement towards me.

(Tr. p. 68). The post-conviction court found that the detectives’ appearance was 

not necessary because “their depositions [would] speak for themselves.” (Tr. p. 

69). As to the other witnesses, the post-conviction court declined to continue 

the matter because “[Lee] already told me what they would testify to, so I don’t 

need to hear it from them.” (Tr. p. 69).

[30] We find no error in the post-conviction court’s refusal to continue the matter in 

order to hear from additional witnesses. Lee failed to comply with Indiana 

Post-Conviction Rule 1(9) by requesting the issuance of subpoenas with the 

updated hearing date and by filing affidavits with each witness’ expected 

testimony. Furthermore, it was entirely within the post-conviction court’s 

discretion to determine that the anticipated testimony of Lee’s witnesses was 

not relevant or probative. See Rondeau v. State, 48 N.E.3d 907, 916 (Ind. Ct. 
Court of Appeals of Indiana | Memorandum Decision 10A04-1505-PC-525 | November 29, 2016 Page 19 of 19

App. 2016) (noting the standard for denying subpoenas in a post-conviction 

proceeding as being an abuse of discretion), trans. denied. Here, the postconviction court clearly found that the testimony of the detectives was neither 

relevant nor probative as such testimony would merely be repetitive of their 

depositions. Likewise, the anticipated testimony of Overton and the other 

inmate was largely cumulative of Lee’s other evidence which suggested that 

Attorney Sturgeon withheld evidence from Lee. We also note that Lee had not 

alleged in his post-conviction relief petition that Attorney Sturgeon made any

aggressive movement toward him. Therefore, we conclude that the postconviction court properly exercised its discretion in declining to continue the 

hearing to allow for Lee to subpoena additional witnesses.

CONCLUSION

[31] Based on the foregoing, we conclude that the post-conviction court properly 

denied Lee’s petition for post-conviction relief.

[32] Affirmed.

[33] Bailey, J. and Barnes, J. concur