MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jun 26 2018, 9:40 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Donald E. Ware                                           Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald E. Ware,                                          June 26, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1710-PC-2499
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Respondent.                                     Marc T. Rothenberg, Judge
                                                         The Honorable
                                                         Amy J. Barbar, Magistrate
                                                         Trial Court Cause No.
                                                         49G02-0508-PC-130877



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018           Page 1 of 9
[1]   Donald E. Ware (“Ware”) appeals the denial of his successive petition for post-

      conviction relief and raises the following restated issue for our review: whether

      the post-conviction court erred when it summarily denied his successive petition

      for post-conviction relief without a hearing, finding that Ware had previously

      been afforded opportunities to litigate the issues he raised in his successive

      petition for post-conviction relief and did not raise any new issues of material of

      fact in his successive petition for post-conviction relief.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The facts supporting Ware’s convictions as set forth by this court in his direct

      appeal are as follows:


              On July 24, 2005, a group of teenage boys gathered in an area
              near the intersection of Rockville Road and Girls School Road in
              Marion County for the purpose of throwing eggs at passing cars.
              At one point, the boys struck Lisa Baker’s car. Baker stopped
              and began yelling that she was going to call the police. The boys
              then struck a pickup truck, which was later determined to be
              driven by Ware. Ware stopped, exited his truck, and yelled at
              the boys. He then returned to his truck and drove to where Baker
              had stopped her car. While talking to Baker, Ware made racially
              derogatory comments about the boys and told Baker that he had
              a rifle and was going to get the boys. Ware asked Baker where
              the boys were, and after Baker pointed in the general direction,
              Ware drove after the boys. While the boys were running from
              Ware’s truck, two shots were fired, killing Brandon Dunson
              (“Dunson”) and wounding Michael Dyer (“Dyer”).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018   Page 2 of 9
        Tracy Nash was the first police officer to arrive on the scene.
        Officer Nash was unaware that there had been a shooting, and
        was on the scene to investigate reports of boys throwing eggs at
        passing vehicles. He noticed Ware’s truck because it was
        traveling at a high rate of speed and saw it pull into a public
        storage facility’s parking lot. When Officer Nash pulled in
        behind the truck, Ware exited his truck and approached the
        driver’s side of Officer Nash’s vehicle. Ware told Officer Nash
        that he had been struck in the head by an egg, and told Officer
        Nash that the boys who had thrown the eggs were running
        behind the public storage facility. Officer Nash told Ware not to
        leave, and went to look for the boys. When Officer Nash
        returned to the parking lot after an unsuccessful search for the
        boys, Ware had left the scene.


        Dunson’s friends who were running with him were afraid of
        being caught and did not stop when Dunson was shot. Later that
        night, one of Dunson’s friends who had not participated in the
        egging became concerned about Dunson and went to look for
        him. He found Dunson’s body in the grass near the public
        storage facility and called the police. After learning that a
        shooting had occurred, the police turned their attention to
        identifying the man with whom Baker and Officer Nash spoke.
        Baker was shown a photographic array and initially identified,
        with ninety percent confidence, Chester Williams as the man
        with whom she spoke. After being shown a second photographic
        array, Baker identified Williams with one hundred percent
        confidence. However, further investigation ruled out Williams as
        a suspect. A few days later, the police received an anonymous
        phone call indicating that a man named “Donny” was
        responsible for shooting Dunson, and that he lived in Avon,
        Indiana, and drove a red pickup truck. Police then began
        surveillance of Ware’s house and determined that Ware was
        “Donny.” Officers then showed a photographic array to Officer
        Nash, who identified Ware as the man with whom he spoke the



Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018   Page 3 of 9
        night of the shooting. The police then applied for a warrant to
        search Ware’s house and vehicle.


        ....


        After receiving the search warrant, officers found eggshells and
        residue in and on Ware’s truck, and found roughly forty-nine
        grams of marijuana in Ware’s residence. No gun was recovered
        during this search or throughout the remainder of the
        investigation. Officers took [Terri] Eberwein, who was at the
        residence at the time of the search, to the police station for
        questioning. Eberwein told officers that upon returning home the
        night of the shooting, Ware had told her he had been egged and
        had “said something about, you know shooting but he didn’t say
        at what or anything,” and that he said “he fired some rounds or
        some shots.” State’s Ex. 113. The next day, officers arrested
        Ware without a warrant and took him in for questioning. Ware
        admitted being on the scene that night and speaking to Baker and
        Officer Nash, but denied shooting at the boys or having a gun.


        Prior to trial, Ware filed a motion to suppress the evidence
        obtained as a result of the search and arrest, arguing that
        probable cause supported neither. After a hearing, the trial court
        denied Ware’s motion. At trial, the boys who had participated in
        the egging testified. All the boys testified that they saw a red or
        dark-colored pickup truck chasing them. Three of the boys
        testified that at some point while they were leaving the scene they
        saw a truck driving around in the area with someone standing in
        the truck’s bed. The jury also heard the testimony of Officer
        Nash and Baker, who both identified Ware as the person with
        whom they spoke that night. Eberwein also testified, and
        admitted telling officers that Ware had mentioned shooting a gun
        the night of the incident, but said that when she gave her
        statement to police, she had been intimidated, was under the
        influence of prescription and illegal drugs, and had falsified some


Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018   Page 4 of 9
              information in her statement. The jury found Ware guilty of
              murder, battery, and two counts of criminal recklessness.


              Ware filed a motion for the trial court to enter alternative final
              judgment and a motion for a new trial. The trial court denied
              both motions at the beginning of the sentencing hearing. The
              trial court sentenced Ware to sixty years for murder, six years for
              battery, and two years for each of the criminal recklessness
              counts. The trial court then ordered that all sentences be served
              consecutively based on the number of victims, for an aggregate
              sentence of seventy years.


      Ware v. State, 859 N.E.2d 708, 713-15 (Ind. Ct. App. 2007), trans. denied. Ware

      filed a direct appeal and raised issues regarding the issuance of the search

      warrant, sufficiency of the evidence, admission of evidence, and the

      appropriateness of his sentence. Id. at 713. His convictions and sentence were

      affirmed, and Ware sought transfer, which was denied. Id. at 726.


[4]   On June 29, 2007, Ware filed a petition for post-conviction relief in which he

      argued that trial counsel was ineffective for failing to inform him “of any plea

      offers, negotiations, etc.” Appellant’s App. Vol. II at 60, 62. Ware subsequently

      withdrew the petition, and the post-conviction court ordered it dismissed

      without prejudice. Id. at 10, 142. On January 11, 2011, Ware filed a second

      petition for post-conviction relief. Id. at 70. In support of his request for

      subpoenas concerning this petition, Ware claimed that the witnesses he wished

      to subpoena would testify that his trial counsel failed to convey a plea offer. Id.

      at 142. Ware again moved to withdraw his petition, and the post-conviction


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018   Page 5 of 9
      court dismissed it without prejudice. Id. at 12. On April 10, 2012, Ware filed a

      third petition for post-conviction relief. Id. at 12-13, 143. In this third petition,

      Ware alleged that he received ineffective assistance of both his trial and

      appellate attorneys, but abandoned his argument that his trial counsel was

      ineffective for failing to convey a plea offer to him. Id. at 99-105. A hearing

      was held on the petition, and the post-conviction court later denied Ware’s

      petition for relief. Id. at 112. The denial of post-conviction relief was affirmed

      by this court, and the Indiana Supreme Court denied transfer. Ware v. State,

      No. 49A02-1304-PC-370 (Ind. Ct. App. Jan. 21, 2014).


[5]   On September 2, 2016, this court granted Ware permission to file a successive

      petition for post-conviction relief. In his successive petition, Ware again alleged

      his previously-asserted argument that his trial counsel failed to convey to him a

      plea offer from the State. Id. at 127-32. The State filed a motion for summary

      disposition of Ware’s successive petition for post-conviction relief, and the post-

      conviction court summarily disposed of his successive petition pursuant to

      Indiana Post-Conviction Rule 4(g) because the issue of the alleged plea offer

      was known and available and, in fact, was raised in Ware’s prior post-

      conviction petitions. Id. at 140-44. Ware now appeals.


                                     Discussion and Decision
[6]   Post-conviction proceedings do not afford the petitioner an opportunity for a

      super appeal, but rather, provide the opportunity to raise issues that were

      unknown or unavailable at the time of the original trial or the direct appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018   Page 6 of 9
      Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000), cert. denied, 534 U.S. 1164

      (2002); Wieland v. State, 848 N.E.2d 679, 681 (Ind. Ct. App. 2006), trans. denied,

      cert. denied, 549 U.S. 1038 (2006). The proceedings do not substitute for a direct

      appeal and provide only a narrow remedy for subsequent collateral challenges

      to convictions. Ben-Yisrayl, 738 N.E.2d at 258. The petitioner for post-

      conviction relief bears the burden of proving the grounds by a preponderance of

      the evidence. Ind. Post-Conviction Rule 1(5).


[7]   When a petitioner appeals a denial of post-conviction relief, he appeals a

      negative judgment. Fisher v. State, 878 N.E.2d 457, 463 (Ind. Ct. App. 2007),

      trans. denied. The petitioner must establish that the evidence as a whole

      unmistakably and unerringly leads to a conclusion contrary to that of the post-

      conviction court. Id. We will disturb a post-conviction court’s decision as

      being contrary to law only where the evidence is without conflict and leads to

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

      conclusion. Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008), trans.

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

      is waived, and if it was raised on appeal, but decided adversely, it is res

      judicata. White v. State, 971 N.E.2d 203, 206 (Ind. Ct. App. 2012) (citing

      Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839

      (2002)), trans. denied. We accept the post-conviction court’s findings of fact

      unless they are clearly erroneous, and no deference is given to its conclusions of

      law. Fisher, 878 N.E.2d at 463.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018   Page 7 of 9
[8]   Here, in his first petition for post-conviction relief, Ware argued that his trial

      counsel was ineffective for failing to convey to him an alleged plea offer from

      the State. Appellant’s App. Vol. II at 60-62. During the proceedings regarding his

      second post-conviction relief petition, Ware also indicated to the post-

      conviction court that he possessed knowledge of the alleged issue when he

      requested subpoenas. Id. at 70. Therefore, contrary to Ware’s contention, his

      claim of ineffective assistance of trial counsel due to failure to convey a plea

      offer, which he raises in his successive petition for post-conviction relief, was

      known, and available, in his initial post-conviction proceedings. Additionally,

      in his third petition for post-conviction relief, Ware raised issues of ineffective

      assistance of trial counsel, but did not include the failure to convey a plea offer

      as one of the grounds of ineffectiveness. Id. at 99-105.


[9]   “Proper successive petitions contain claims that by their nature could not have

      been raised in earlier proceedings.” Matheny v. State, 834 N.E.2d 658, 662 (Ind.

      2005). Claims that could have been, but were not, raised in earlier proceedings

      and otherwise were not properly preserved are procedurally defaulted.” Id.

      The fact that Ware abandoned the claim before proceeding to a decision on the

      merits in his first two petitions does not allow him to escape waiver, especially

      in light of the fact that he failed to raise the present claim in his third petition,

      which was decided on the merits concerning ineffective assistance grounds.

      Based on the record, Ware had known of his alleged plea offer claim since his

      first petition for post-conviction relief was filed in 2007. His failure to litigate




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018   Page 8 of 9
       this claim when given the opportunity precludes him from raising the claim in a

       successive petition.


[10]   Under Indiana Post-Conviction Rule 1 section 4(g), the post-conviction court

       “may grant a motion by either party for summary disposition of the petition

       when it appears . . . that there is no genuine issue of material fact and the

       moving party is entitled to judgment as a matter of law.” Here, Ware had

       numerous opportunities to present his claim of ineffective assistance of counsel

       for failure to convey a plea offer to him, and he has not shown that there is any

       genuine issue of material fact regarding his petition. Therefore, the post-

       conviction court properly denied relief and summarily disposed of Ware’s

       petition pursuant to Indiana Post-Conviction Rule 1(4)(g).


[11]   Affirmed.


       Baker, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-PC-2499 | June 26, 2018   Page 9 of 9