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 : SHELDON C. M C AULEY GREGORY F. ZOELLER Westville Correctional Facility Attorney General of Indiana Westville, Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

SHELDON C. M C AULEY, ) ) Appellant

- Petitioner , ) ) vs. ) No. 02A03

- 1302

- PC

- 50 ) STATE OF INDIANA, ) ) Appellee

- Respondent

. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable John F. Surbeck, Jr. , Judge Cause No. 02D06

- 1108

- PC

- 10 1

August 13, 2013

MEMORANDUM DECISION
- NOT FOR PUBLICATION

CRONE, Judge2

Sheldon C . McAuley appeals the denial of his petition for post

- conviction relief (“PCR”). We conclude that he waived his arguments on appeal because he failed to make
them to the post

- conviction (“PC”) court. Therefore, we affirm. In October of 2010, a jury found McAuley guilty of class C felony battery, class D felony residential entry, and class A misdemeanor interference with the reporting of a crime.
The trial court found that McAuley’s criminal history and his failure to respond to
rehabilitation efforts were aggravating circumstances , that there were no mitigating
circumstances , and sentenced McAuley to an aggregate term of eight years. On direct appeal, we rejecte d McAuley ’s challenge to the sufficiency of the evidence and affirmed his
convictions. McAuley v. State , No. 02A03

- 1011

- CR

- 646 (Ind. Ct. App. July 14, 2011). McAuley, pro se, filed a PCR petition, claiming that appellate counsel provided
ineffective assi stance by failing to adequately present the issue that the investigating officer’s testimony as to the victim ’s statements the night of the incident was inadmissible hearsay. Specifically, h e asserted that the investigating officer’s test i m o ny was inadmis sible because it contained “multiple hearsay,” that is , “hearsay within hearsay.” Appellant’s App. at 64

- 65

. Mc Auley concede d that the primary statements made by the victim to the investigating
officer were admissible as excited utterances pursuant to In diana Evidence Rule 803(2)

. Id

. at 94 , 96

. McAuley also claimed that a ppellate counsel was ineffective in fail ing to raise the
issue that “based on the gravity, nature, and number of prior offense s ,” his criminal record did not justify his eight

- year sen tence for class C felony battery and the trial court erred in not finding mitigating circumstances

. Id . at 123, 126, 128

- 29, 154

- 55. T he PC court issued3

finding s of fact and conclusions of law , concluding that McAuley’s appellate counsel had not provided ineffective assistance and denying McAuley’s PCR petition. McAuley appeals the PC court’s rejection of his claim that appellate counsel provided
ineffective assistance in failing to adequately present the issue that the investigating officer’s testimony was inadmissible hearsay

. 1 In his appellant’s brief , McAuley contends that appellate counsel failed to adequately argue that the investigating officer’s testimony regarding the victim’s statements was not admissible as an excited utterance pursuant to
Ind iana Evidence Rule 803(2). 2 Appellant’s Br. at 40

- 48. However, this is not the argument
M cAuley presented to the PC court

. In his PCR petition, McAuley asserted that appellate counsel failed to argue that the investigating officer’s testimony was inadmi ssible because it

was “ hearsay within hearsay

. ” Appellant’s App. at 65. In fact, McAuley conceded in his PCR petition that the victim’s statements to the investigating officer on the night of the

1 McAuley claims that the PC court failed to provide findings of fact and conclusions of law on appellate counsel’s failure to adequately present the inadmissible hearsay issue . We disagree. The PC court’s f indings 6 and 9 and c onclusions 2 and 3 address this claim. Appellant’s App. at 9

- 10, 11, 13

- 15. McAuley also contends that because the S t ate did not respond to specific paragraphs in his affidavit in support of his PCR petition , the PC court was required to accept these paragraphs as true and , when accepted as true, they conclusively establish his claim

. S ome of the uncontested paragraphs are statements concerning the ultimate issues to be decided by the PC court and therefore were not facts of which McAuley could have personal knowledge

. Some uncontested paragraphs simply contain quotations from parts of the record , but they do not establish McAuley’s claim. In sum, McAuley’s contention is meritless.

2 “‘Hearsay’ is a state ment, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted , ” and is generally inadmissible. Ind. Evidence Rule s 801 and 802. However, “ [a] statement relating to a sta rtling event or condition made while the declarant was under the stress of excitement c aused by the event or condition” is n ot excluded by the hearsay rule

. Ind

. Evidence Rule 803 (2).4

incident were admissible as excited utterances. 3 Because Mc A uley failed to present the
argument he makes on appeal to the PC court, he has waived it for our review. See Walker v.
State , 843 N.E.2d 50, 58 n.2 (Ind. Ct. App. 2006) ( “Issues not raised in the petition for post

conviction relief may not be raised fo r the first time on post

- conviction appeal.” ) , trans.
denied , cert. denied (2007) ; Koons v. State , 771 N.E.2d 685, 691 (Ind. Ct. App. 2002) ( “The failure to raise an alleged error in the petition waives the right to raise that issue on appeal.” ) , trans. de nied

. McAuley also argues that his appellate counsel provided ineffective assistance in failing to raise the issue that pursuant to Indiana Appellate Rule 7(B), McAuley’s sentence was inappropriate in light of the nature of the offenses and his character

. 4 This is not the

same argument that he presented in his PCR pe t ition

. Although he cited Indiana Appellate Rule 7(B) in his PCR petition , he did not base his inappropriate ness argument on the nature
of his offenses and his character

. Rather, the thrust of the argument in his PCR petition was that the trial court erred in assigning too much aggravating weight to his criminal history and

3 In his affidavit in support of his PCR petition , McAuley also asser ted that the investigating officer’s testimony was inadmissible hearsay within hearsay and conceded that the victim’s statements to the officer were admissible as excited utterances. Appellant’s App. at 416

- 18.

4 Indiana Appellate Rule 7(B) states, “The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”5

in not finding mitigating circumstances. 5 As such, McAuley has waived t his argument. See
Walker , 843 N.E.2d at 58 n.2

. Accordingly , we affirm the denial of McAuley’s PC petition.
Affirmed. KIRSCH, J., and VAIDIK, J., concur.

5 “ Our Supreme Cou rt has previously explained that under our advisory sentencing scheme, trial courts no longer have any obligation to weigh aggravating and mitigating factors against each other when imposing a sentence. Therefore, the weight the trial court gives to any a ggravating circumstances is n ot subject to appellate review.” Ramon v. State , 888 N.E.2d 244, 255 (Ind. Ct. App. 2008) (citing Anglemyer v. State , 868 N.E.2d 482 , 491 (Ind. 2007) , clarified on reh’g , 875 N.E.2d 218 )

.