from the Tippecanoe Superior Court The Honorable Steven P.
Meyer, Judge Trial Court Cause No. 79D02-1407-PC-5
ATTORNEY FOR APPELLANT Stephen T. Owens Public Defender of
Indiana J. Michael Sauer Deputy Public Defender Indianapolis,
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Ellen H. Meilaender Deputy Attorney General
Matthew Johnson appeals the denial of his petition for
post-conviction relief. He argues the post-conviction court
erred when it rejected his allegation that his appellate
counsel was ineffective for failing to argue the application
of the Proportionality Clause to Johnson's conviction of
Class B felony aggravated battery. We affirm.
and Procedural History
On July 20, 2011, the trial court found Johnson guilty of
Class B felony aggravated battery,  Class C felony battery,
Class B felony possession of methamphetamine,  Class C felony
possession of methamphetamine,  and Class C felony possession of
chemical reagents or precursors with intent to manufacture
controlled substances. The trial court also found Johnson was a
habitual substance offender. On September 30, 2011, the trial
court sentenced Johnson to fifteen years for Class B felony
aggravated battery to be served consecutive to fifteen years
for Class B felony possession of methamphetamine, which was
enhanced by five years by virtue of Johnson's habitual
substance offender adjudication, for an aggregate sentence of
thirty-five years incarcerated.
On appeal, Johnson's appellate counsel raised four
(1) whether the court abused its discretion by denying his
motion to sever the drug-related charges; (2) whether the
court abused its discretion by refusing to add language to
the self-defense instruction; (3) whether the court abused
its discretion by refusing to instruct the jury regarding
defenses to the drug charges; and (4) whether the sentence
(App. Vol. II at 127.) We affirmed Johnson's convictions
and sentence. Johnson v. State, Cause No.
79A02-1110-CR-991 (Ind.Ct.App. Sept. 21, 2012).
On July 16, 2014, Johnson filed a pro se
petition for post-conviction relief. On December 15, 2016,
Johnson, with the aid of counsel, filed an amended petition
for post-conviction relief. Johnson argued his appellate
counsel was ineffective for failing to argue on appeal that
Johnson's conviction of Class B felony aggravated battery
violated the Proportionality Clause. The post-conviction
court held an evidentiary hearing on the petition on August
2, 2017. On October 27, 2017, the post-conviction court
denied Johnson's petition.
A post-conviction petition is not a substitute for an appeal,
nor does it afford a petitioner a "super appeal."
Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006).
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), reh'g denied, cert.
denied, 537 U.S. 1122 (2003). 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 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) (internal quotation and citation omitted),
reh'g denied, cert. denied, 534 U.S. 830 (2001).
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, 676-7 (Ind. 2004). The defendant must show that
appellate counsel was deficient in his performance and that
the deficiency resulted in prejudice. Id. at 677. A
claim of ineffective appellate assistance generally falls
into one of three categories: (1) denial of access to an
appeal; (2) waiver of issues; or (3) failure to present
issues well. Id. We employ a two-part test to
evaluate "waiver of issue" claims: (1) whether the