Defendant Appellant Gerald W. Bivins was convicted of robbery while armed with a deadly weapon, a class B felony, at the conclusion of a jury trial before the Van-derburgh Circuit Court. On May 7, 1981 he was sentenced to thirteen yеars imprisonment. This Court affirmed the conviction on direct appeal. Bivins v. State (1982), Ind.,
Appellant's arguments raise three issues for consideration:
1.) whether the trial court erred in allowing the State to argue the defense of waiver over Appellant's allegation that such defense was not raised in the State's response to Appellant's petition for post-conviction relief;
2.) whether the trial court erred in finding Appellant had waived his right to challenge the improper selection of the special judge; and
8.) whether thе trial court erred in finding Appellant received effective assistance of counsel.
We note first that in a proceeding for post-conviction relief the petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence. Ind.R.P.C. 1, § 5. We will not set aside the trial court's ruling on the post-conviction petition unless the evidence is without conflict and leads solely to a result different from that reаched by the trial court. McHugh v. State (1984), Ind.,
*91 Appellant filed his first pro se Petition for Post-Conviction Relief on July 1, 1982, alleging incompetency of counsel and inadequate time to prepare for trial. On July 28, 1982 the State responded with an answer generally denying both allegations. While the record is unclear, it appears Appellant withdrew his initial petition by writing a letter to the trial court clerk for that purpose. A court entry on January 10, 1983 statеs, "Comes now [Appellant], pro se, and [files] letter with the court withdrawing his Post-Conviection Relief Petition."
On March 2, 1983 Appellant filed an amended pro se petition, alleging unlawful search of an automobile, lack of jurisdiction on the part of the trial judge, ineffective assistance of counsel, compulsion to incrim-mate himself, violation of his right to be free from self-incrimination, and the existence of newly discovered evidence. The State responded by way of a Motion to Dismiss on March 17, 1983, based on the proposition that all of the issues raised in the petition were either raised and adjudicated on appeal or could have been so raised, and thus were waived. Again Appellant attempted to withdraw his second petition by filing a motion expressing such an intent with the trial court clerk. It is unclear whether or not the trial court ruled on this motion, but subsequеntly Special Judge Randall T. Shepard issued an order in response to Appellant's Motion to Correct and Settle the Record, which order shows the second pro se petition was in fact withdrawn.
On September 26, 1983 Appellant filed the instant Petition for Post-Conviction Relief, essentially the same as the second petition, alleging unlawful search of an automobile, lack of jurisdiction on the part of the trial judge, ineffective assistance of counsel, and violation of his right to be free from self-incrimination. The only significant difference between the second and third petitions is that the latter excludes an allegation of compulsion to inсriminate Appellant's self and the existence of newly discovered evidence. The State made no response to this third pro se Petition for Post-Conviction Relief,
In addition to representing himself on a number of motions, Appellant was represented by three separate attorneys and by the Public Defender's office at times. Appellant also moved for the appointment of a legal adviser from Pendleton, Indiana, which motion was denied.
I
Appellant claims the court erred in allowing the State to argue the defense of waiver over his allegation that such defense was not raised in the State's response to his Petition for Pоst-Conviction Relief. Specifically, Appellant maintains that no answer was ever filed to his final petition. While he acknowledges that responses were made to the first two petitions, Appellant argues that neither complied with the requirement that an affirmative defense be raised by a responsive pleading. Appellant does not view the State's Motion to Dismiss his second petition as a valid response to his third petition.
Harrington v. State (1984), Ind.App.,
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Furthermore, we have held where the State has raised legitimate defenses by its answer to a prior filed post-conviction relief petition, that answer is deemed a sufficient challеnge to a later filed petition that raises the same issues as did the earlier petition; the filing of an additional answer is unnecessary. State v. Fair (1983), Ind.,
II
Appellant also maintains the court - erred in finding he had waived his right to challenge the improper selectiоn of the special judge, and that if such was not waived any error was harmless. Appellant points out that Ind.R.Crim.P. 18 provides the exclusive manner for selecting special judges, alternately striking from a panel of three nаmes. - It is clear in the present case that this method was not utilized, and Appellant claims such failure to comply with the rule was reversible error, the special judge having no authority to serve. These propositiоns by Appellant are correct, but they attempt to shift the focus toward the impropriety of the selection, and away from the real issue, whether Appellant waived his right to challenge that selection.
We hаve held that where a defendant does not object to an irregularity in the appointment of a special judge, he accepts the appointment, submits to the jurisdiction, and waives the irregularity. Powell v. State (1982), Ind.,
THI
Appellant's final argument is that he did not receive effective assistance of counsel. As support for this allegation of error he points out that his counsel had insufficient time to prepare yet did not seek a continuance, and that his counsel was unaware of the appropriate procedure for selection of a spеcial judge. His counsel was appointed one week prior to trial, met with Appellant for two or three hours, and testified he felt adequately prepared. Trial counsel failed to object to the imprоper selection of the special judge.
In order to show ineffective assistance of counsel, Appellant must establish that counsel's performance was deficient and that such deficiency prejudiсed his case. Elliott v. State (1984), Ind.,
In the present case trial counsel used the seven days prior to trial to meet with Appellant on a number of occasions, and to subpoena each witness Appellant
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suggested. Trial counsel felt he was adequately prepared and raised six separate issues at trial, one issue even being a question of first impression. This case is unlike Kimball v. State (1985), Ind.,
In Kimball, we set forth the standard for determining whether inadequacy of preparation has deprived a defendant of effective assistance of counsel. One must look at and compare the time of appointment and the conduct at trial, considering the totality of cireumstances on a case-by-case basis, including the complexity of the issues, necessity for pre-trial motions, necessity to interview witnesses, and whether the defendant is able to assist in the preparation. Id. at 984, citing Marshall v. State (1982), Ind.,
It is clear that trial counsel failed to object to the improper selection of the special judge. In reviewing an issue of this type we look to the totality of the facts and circumstances to determine whether Appellant received adequate representation. Kalady v. State (1984), Ind.,
The trial court is affirmed.