Court of Appeals of Indiana | Memorandum Decision 18A-PC-606 | December 18, 2018 Page 1 of 8

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

Mario Brown

Michigan City, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mario Brown,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 18, 2018

Court of Appeals Case No.

18A-PC-606

Appeal from the St. Joseph 

Superior Court

The Honorable John M. 

Marnocha, Judge

Trial Court Cause Nos.

71D02-1311-FA-23

71D02-1702-PC-10

Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PC-606 | December 18, 2018 Page 2 of 8

Statement of the Case

[1] Mario Brown appeals the post-conviction court’s denial of his petition for postconviction relief. Brown raises three issues for our review, which we restate as 

follows:

1. Whether Brown preserved for appellate review his 

assertion that he did not enter into his guilty plea

knowingly, intelligently, and voluntarily.

2. Whether the post-conviction court erred when it 

concluded that Brown did not receive ineffective assistance 

from his trial counsel.

3. Whether Brown waived his freestanding claim of an 

erroneous sentence.

[2] We affirm.

Facts and Procedural History

[3] On November 15, 2013, the State charged Brown with two counts of Class A 

felony child molesting and one count of Class C felony child molesting. 

Thereafter, Brown entered into a plea agreement with the State in which Brown 

agreed to plead guilty to one count of Class A felony child molesting and, in 

exchange, the State dismissed the other two counts. The plea agreement also 

provided for a maximum executed sentence of thirty-five years and a waiver of 

Brown’s right to appeal his sentence. Appellant’s App. Vol 2 at 64-65. The 

trial court accepted Brown’s plea agreement, entered its judgment of conviction, 

and sentenced him to the advisory term of thirty years.
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[4] In February of 2017, Brown filed his petition for post-conviction relief. At an 

ensuing evidentiary hearing on Brown’s petition, Brown clarified for the court 

that his petition raised two issues: whether his trial counsel had rendered 

ineffective assistance of counsel in advising Brown to plead guilty and in not 

“challeng[ing]” “[a]nything,” and whether he had received an “erroneous” 

sentence. Id. at 159. The post-conviction court then heard evidence, including 

the testimony of Brown’s trial counsel. In particular, Brown’s trial counsel

testified as follows:

Q [by Brown]. Did you . . . fully explain to me about what was 

in my plea agreement?

A. Yes. We fully went over your plea agreement.

* * *

Q. With regard to the plea agreement . . . , did you fully 

inform me with regard to . . . the statute definition as a credit 

restricted felon under . . . Indiana Code [Section] 35-31.5-2-7.2 

because there is no mention in my plea agreement?

A. Yes. We discussed what a credit restricted felon would 

mean.

* * *

Q. In regard to the witness response to 

interrogatories . . . [you] stated that [you] adequately investigated 

the cause. [You], however, never filed any motion or depositions 

of potential witnesses . . . . If you never challenged any of the 
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witnesses, specifically both the physician and the forensic 

interviewer, how could you say that the police narrative of events 

was totally substantial to all the charges in the information?

A. Why didn’t I file a motion or deposition?

Q. And do a deposition, yes.

A. In a case like this, a child molesting case, depositions are 

not necessarily discovery tools. I mean, these are of-court 

records, so whoever comes in to testify at one of these, if they 

subsequently don’t show up at trial, they can put in the 

deposition testimony. So no, I never filed for a deposition nor 

did you ever ask me to.

Q. So in other words, you never put any of the evidence to 

the test. You claim in the interrogatory that you met with the 

prosecutor to challenge the evidence.

A. Yes. I met with the prosecutor four or five times. I looked 

at the videos. I reviewed all the evidence, but no, I did not do a 

deposition in the case.

Id. at 161-62, 164-65. Following the evidentiary hearing, the post-conviction 

court entered findings of fact and conclusions of law denying Brown’s petition 

for post-conviction relief. This appeal ensued.
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Discussion and Decision1

Standard of Review

[5] Brown appeals the post-conviction court’s denial of his petition for postconviction relief. Our standard of review in such appeals is clear:

“The petitioner in a post-conviction proceeding bears the burden 

of establishing grounds for relief by a preponderance of the 

evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014). 

“When appealing the denial of post-conviction relief, the 

petitioner stands in the position of one appealing from a negative 

judgment.” Id. at 274. In order to prevail on an appeal from the 

denial of post-conviction relief, a petitioner must show that the 

evidence leads unerringly and unmistakably to a conclusion 

opposite that reached by the post-conviction court. Weatherford v. 

State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the postconviction court in this case entered findings of fact and 

conclusions of law in accordance with Indiana Post-Conviction 

Rule 1(6). Although we do not defer to the post-conviction 

court’s legal conclusions, “[a] post-conviction court’s findings 

and judgment will be reversed only upon a showing of clear 

error—that which leaves us with a definite and firm conviction 

that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d 

102, 106 (Ind. 2000) (internal quotation omitted).

Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).

 

1

 It is of no moment that Brown proceeds in this appeal pro se. “[A] pro se litigant is held to the same 

standards as a trained attorney and is afforded no inherent leniency simply by virtue of being selfrepresented.” Zavodnik v. Harper, 17 N.E.3d 259, 266 (Ind. 2014).
Court of Appeals of Indiana | Memorandum Decision 18A-PC-606 | December 18, 2018 Page 6 of 8

Issue One: Guilty Plea

[6] On appeal, Brown first asserts that the post-conviction court erred when it 

denied his petition because he did not enter into his guilty plea knowingly, 

intelligently, and voluntarily. However, in the post-conviction court, Brown 

raised the issue of the validity of his guilty plea only in relation to his claim that 

he had received ineffective assistance of trial counsel. Brown did not present a 

freestanding challenge to his guilty plea to the post-conviction court. See 

Appellant’s App. Vol. 2 at 159. He may not raise the issue for the first time on 

appeal. E.g., A.C. v. Ind. Dep’t of Child Servs. (In re N.C.), 56 N.E.3d 65, 69 (Ind. 

Ct. App. 2016), trans. denied. Accordingly, Brown has not preserved this issue 

for our review, and we do not consider it.

Issue Two: Ineffective Assistance of Counsel

[7] Brown next asserts that the post-conviction court erred when it denied his 

petition because he received ineffective assistance of counsel. As our Supreme 

Court has made clear:

When evaluating an ineffective assistance of counsel claim, we 

apply the two-part test articulated in Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v. 

State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first 

prong, “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.” 

McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing 

Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the 

second prong, “the defendant must show prejudice: a reasonable 
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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. (citing Strickland, 466 

U.S. at 694, 104 S. Ct. 2052).

Humphrey, 73 N.E.3d at 682.

[8] In particular, Brown asserts that his trial counsel rendered ineffective assistance 

when trial counsel failed to advise Brown prior to Brown pleading guilty that he 

would be a credit-restricted felon. Brown also asserts that trial counsel rendered 

ineffective assistance by failing to investigate the State’s charges against Brown. 

However, we conclude that Brown’s arguments on those issues are not 

supported by cogent reasoning and citations to relevant authorities and the 

record. See Appellant’s Br. at 20-25. Rather, Brown’s assertions on those 

issues, insofar as they are even relevant, are nothing more than statements of his 

own conclusions. Such statements, without more, are insufficient to 

demonstrate reversible error, and, as such, Brown has waived appellate review 

of those issues. See Ind. Appellate Rule 46(A)(8)(a).

[9] Brown’s waiver notwithstanding, his assertion that trial counsel failed to advise 

him prior to the plea agreement that he would be a credit-restricted felon is 

contrary to the evidence most favorable to the judgment, namely, trial counsel’s 

testimony that he did so advise Brown. Likewise, Brown’s assertion that trial 

counsel failed to properly and fully investigate the State’s charges is also 

contrary to trial counsel’s testimony to the post-conviction court. We cannot 

reweigh the evidence on appeal. Accordingly, we conclude that the post-
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conviction court did not err when it denied Brown’s petition on his claims of 

ineffective assistance of trial counsel.

Issue Three: Sentence

[10] Last, Brown asserts that the post-conviction court erred when it denied his 

petition because Brown received an erroneous sentence. However, in his plea 

agreement Brown waived the right to appeal his sentence so long as he received 

a sentence at or below thirty-five years executed, which he did receive. 

Moreover, the post-conviction process is not an appropriate vehicle for 

freestanding sentencing challenges. E.g., Hooker v. State, 799 N.E.2d 561, 569 

(Ind. Ct. App. 2003), trans. denied. Accordingly, we do not consider this 

purported issue.

Conclusion

[11] Thus, Brown has failed to show that the evidence leads unerringly and 

unmistakably to a conclusion opposite that reached by the post-conviction 

court. We affirm the post-conviction court’s denial of Brown’s petition for postconviction relief.

[12] Affirmed.

Crone, J., and Pyle, J., concur.