MAY, Judge.
Danny Ramsey appeals the partial denial of his petition for post-conviction relief. He presents six issues, which we consolidate and restate as three:
We affirm.
The facts of Ramsey's convictions and sentence were set forth in his direct appeal:
The jury ultimately found Ramsey guilty on all counts.
Ramsey v. State, 853 N.E.2d 491, 496-97 (Ind. Ct. App. 2006), trans. denied. On direct appeal, Ramsey argued there was
Id. at 495. We affirmed.
On March 8, 2007, Ramsey filed a pro se petition for post-conviction relief. The matter was referred to the State Public Defender, and the State filed its answer on March 16. Ramsey's public defender withdrew on July 31, 2009, and State filed an amended answer on December 14. Ramsey, pro se, filed a motion to amend his petition for post-conviction relief and a motion for an evidentiary hearing on December 18. The post-conviction court granted his motion to amend his petition on February 10, 2010, and ordered Ramsey to submit his affidavits in support of his petition by April 1. On January 19, 2011, the post-conviction court denied all of Ramsey's claims except the argument his trial counsel was ineffective because he did not object to the State's allegation Ramsey was an habitual offender.
Post-conviction proceedings 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). As post-conviction proceedings are civil in nature, the petitioner must prove his grounds for relief by a preponderance of the evidence. Id. A party appealing a negative post-conviction judgment must establish that the evidence is without conflict and, as a whole, unmistakably and unerringly points to a conclusion contrary to that reached by the post-conviction court. Id. 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 do not defer to the court's legal conclusions, but "the 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) (citation omitted).
Ramsey argues he was erroneously denied an evidentiary hearing on his petition for post-conviction relief because his petition raised issues of fact to be decided by the court. P-C. R. 1(4)(g) states:
Based thereon, Ramsey asserts, the court had an obligation to hold a hearing.
The State asserts that rule applies only when a party requests a summary disposition, which neither party did here. Instead, the State argues, because Ramsey filed his petition pro se, the court correctly proceeded without an evidentiary hearing pursuant to another post-conviction rule:
P-C. R. 1(9)(b) (italics added).
As the post-conviction court could "order the cause submitted upon affidavit at its discretion," id., Ramsey must demonstrate the post-conviction court abused its discretion. See Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005) ("[W]e will review the PCR court's decision to forego an evidentiary hearing when affidavits have been submitted under Rule 1(9)(b) under an abuse of discretion standard."), trans. denied. We hold it did not.
Ramsey filed a forty-two page petition for post-conviction relief, with extensive argument regarding each of his requests for relief. The trial court issued a thirty-nine page order addressing each of Ramsey's issues. On appeal, Ramsey argues, "it is clear that there were unresolved facts that required an evidentiary hearing for a full and fair determination of the cause[,]" (Br. of Appellant at 7), but he cites no specific issues or facts to support his contention. Because Ramsey failed to cite specific issues that contained genuine questions of fact, he has failed to demonstrate an evidentiary hearing was necessary for determination of the issues he raised. See P-C R. 1(4)(g) ("If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.") Thus we cannot say the trial court abused its discretion in denying his petition for an evidentiary hearing.
We review claims of ineffective assistance of counsel under the two-part test in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail, a claimant must show counsel's performance fell below an objective level of reasonableness based on prevailing professional norms, Taylor v. State, 882 N.E.2d 777, 781 (Ind. Ct. App. 2008), and that the deficient performance resulted in prejudice. Id.
"Prejudice occurs when the defendant demonstrates that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466 U.S. at 694). We need not consider whether counsel's performance fell below the objective standard if that performance would have not changed the outcome. Strickland, 466 U.S. at 687.
"To prevail on an ineffective assistance of counsel claim based upon counsel's failure to file motions on a defendant's behalf, the defendant must demonstrate that such motions would have been successful." Moore v. State, 872 N.E.2d 617, 621 (Ind. Ct. App. 2007) (quoting Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct. App. 2002)), reh'g denied, trans. denied. Ramsey argues counsel was ineffective because he did not request a change of judge based on the fact the judge presiding over Ramsey's trial was also the judge who signed the warrant for Ramsey's arrest.
In Beverly v. State, 543 N.E.2d 1111, 1115 (Ind. 1989), our Indiana Supreme Court held "the fact that appellant's trial judge signed his probable cause affidavit and arrest warrant does not constitute a showing of actual prejudice or bias[.]" Based on that case law, the trial court should not have granted a motion for a change of judge based on that argument. Ramsey has not indicated any other reason the judge may have been prejudiced or biased. Therefore, Ramsey has not demonstrated counsel was ineffective for declining to request a change of judge.
Ramsey next argues his trial counsel should have requested suppression of his confession because it was the product of an unreasonable delay between his arrest and initial hearing. As a rule, a person arrested without a warrant should be brought before a magistrate within forty-eight hours of the arrest for a determination of probable cause. Griffith v. State, 788 N.E.2d 835, 841 (Ind. 2003). If there is a delay in this process, "[t]he normal remedy . . . is the suppression of the evidence obtained during the unreasonable delay." Stafford v. State, 890 N.E.2d 744, 749 (Ind. Ct. App. 2008).
The State notes, and the Record confirms, the statement that Ramsey calls his confession occurred while police were executing the search warrant at his residence. The police asked if a jacket was his, he said "yes," and the jacket contained methamphetamine. Although neither party explains whether Ramsey was under arrest at the time he admitted the jacket was his, it is obvious that his admission to owning the jacket was not the product of a prolonged detention and Ramsey has not argued he was coerced into making the statement. See Peterson v. State, 674 N.E.2d 528, 539 (Ind. 1996) ("It is only when the confession is the product of that detention that it must be suppressed. When the confession is the product of the defendant's free will, it is admissible."), reh'g denied, cert. denied, 522 U.S. 1078. Thus, had his counsel requested suppression of his confession, Ramsey has not demonstrated any likelihood the trial court would have granted it. Therefore, Ramsey has not demonstrated his trial counsel was ineffective.
Ramsey asserts his trial counsel should have requested a hearing to test the sufficiency of the probable cause affidavit that was the basis for the charges against him. In Franks, the United States Supreme Court held:
438 U.S. at 155-56.
On direct appeal, Ramsey challenged the search warrant, and we held the State sufficiently established the credibility of the confidential informant providing the information therefor. Ramsey, 853 N.E.2d at 504. Ramsey has not explained how different information would have been elicited during the Franks hearing. Thus it appears Ramsey is attempting to restate an issue that was already decided against him. Post-conviction petitioners are not permitted to rephrase an issue raised on direct appeal in an attempt to induce a different result during post-conviction proceedings. See Ben-Yisrayl, 738 N.E.2d at 258 (When an issue has been presented and decided as part of a direct appeal, "the doctrine of res judicata applies, therefore precluding its review in post-conviction proceedings.. . . A petitioner for post conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error.") (internal citations omitted). This issue was decided in Ramsey's direct appeal and was not available for re-litigation in post-conviction proceedings.
Ramsey claims his trial counsel should have moved to dismiss the additional charges filed against him after he rejected the State's plea offer because the new charges were filed vindictively and in retaliation for his rejection of the plea offer. When charges are modified prior to trial, the defendant is not entitled to a presumption of vindictiveness. Reynolds v. State, 625 N.E.2d 1319, 1321 (Ind. Ct. App. 1993), trans. denied. "The filing of charges supported by probable cause subsequent to a break down in plea negotiations does not constitute retaliation for the defendant's exercise of his right to trial." Id. at 1322. The State had probable cause to file the additional charges against Ramsey based on a prior investigation. Therefore, pursuant to Reynolds, the trial court would not have granted a motion to dismiss the additional charges against Ramsey, and he has not demonstrated trial counsel was ineffective for failing to do so.
We review claims of ineffective assistance of appellate counsel using the same standard applicable to claims of trial counsel ineffectiveness. Fisher v. State, 810 N.E.2d 674, 676-77 (Ind. 2004). The defendant must show that appellate counsel was deficient in his performance and that the deficiency resulted in prejudice. Id. at 677.
Ineffective appellate assistance claims generally fall into three categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Id. We employ a two-part test to evaluate "waiver of issue" claims: (1) whether the unraised issues are significant and obvious from the face of the record, and (2) whether the unraised issues are "clearly stronger" than the issues raised. Id.
Because counsel is afforded considerable discretion in choosing strategy and tactics, we presume counsel's assistance was adequate and all significant decisions were made in the exercise of reasonable professional judgment. State v. Miller, 771 N.E.2d 1284, 1288 (Ind. Ct. App. 2002). Deciding which issues to raise on appeal is one of the most important strategic decisions appellate counsel must make. Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1998), reh'g denied.
Ramsey argues his appellate counsel, who was also his trial counsel, should have challenged his sentence because "the sentencing court failed to give a sentencing statement with a detail [sic] recitation of the court's reason for the sentence imposed, considering aggravating and mitigating circumstances." (Br. of Appellant at 21.) However, had his appellate counsel challenged his sentence based on an allegedly insufficient sentencing statement, the argument would have been rejected pursuant to Corbett v. State, 764 N.E.2d 622, 631 (Ind. 2002), in which our Indiana Supreme Court held an appellate court may review both the written and the oral sentencing statements of the trial court to determine the findings of the court. Thus, because the argument would have been unsuccessful, Ramsey was not prejudiced by its omission and has failed to demonstrate his appellate counsel was ineffective for that reason.
The post-conviction court did not abuse its discretion when it denied Ramsey's request for an evidentiary hearing because the matter was properly decided by affidavits pursuant to P-C Rule 1(9)(b). Ramsey has not demonstrated trial counsel was ineffective; the motions for change of judge, suppression of evidence, and to dismiss the additional charges against Ramsey would not have been granted. Ramsey's argument trial counsel should have moved for a Franks hearing is res judicata because the issue was addressed on direct appeal. Finally, Ramsey has not demonstrate appellate counsel was ineffective for omitting the issue of sentencing before the trial court because there were stronger issues to be presented on appeal and Ramsey's proffered argument would have been ultimately unsuccessful. Accordingly, we affirm the decision of the post-conviction court.
Affirmed.
NAJAM, J., and RILEY, J., concur.