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 FILED Dec 10 2012, 10:36 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
DARNELL C. MILLER, SR. GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana
JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DARNELL C. MILLER, SR., ) ) Appellant-Defendant, ) ) vs. ) No. 02A05-1110-PC-703 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy W. Davis, Judge Cause No. 02D04-1008-PC-62
December 10, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge Case Summary
Darnell C. Miller, Sr., pro se, appeals the post-conviction court’s denial of his
petition for post-conviction relief. He contends that the post-conviction court erred in
denying his request for an evidentiary hearing and in holding that he did not receive
ineffective assistance of trial and appellate counsel. Finding that Miller was not entitled
to an evidentiary hearing and that he did not receive ineffective assistance of either trial
or appellate counsel, we affirm.
Facts and Procedural History
The facts underlying Miller’s convictions were adopted from this Court’s
memorandum decision on direct appeal:
Kimberly Seiss (“Detective Seiss”), an undercover narcotics detective with the Fort Wayne Police Department, was working with Confidential Informant #1345 (“CI”) to purchase narcotics in controlled transactions. The CI knew Miller sold narcotics and agreed to assist Detective Seiss by arranging narcotics purchases from him.
On February 21, 2006, Detective Seiss, through her CI, purchased marijuana, which she referred to as “weed,” from Miller. The CI arranged a transaction at Pontiac Mall, where Miller was working as a barber. Miller came out of the mall with a bag and met the CI. Then, both men entered Detective Seiss’ undercover vehicle. Miller produced a bag of marijuana, Miller and the CI discussed the “good” quality of the drug, and Detective Seiss purchased the marijuana for $350.00. The CI discussed purchasing more marijuana from Miller in their next encounter. Also, Miller asked if Detective Seiss had a friend to whom she could introduce him.
One week later, on February 28, 2006, the CI facilitated another purchase of narcotics from Miller at Pontiac Mall, and this time $600.00 was exchanged for one-half pound of marijuana. Detective Seiss asked Miller if he could obtain some ecstasy, which she referred to as “X.” Miller said he could get it. Again, Miller inquired about Detective Seiss’ friend and indicated that he wanted to meet her.
2 The CI arranged for a third purchase of narcotics from Miller on March 3, 2006. Detective Teresa Smith (“Detective Smith”) portrayed the female “friend” that Miller wanted to meet and accompanied Detective Seiss and the CI to the mall. Miller arrived in a GMC Jimmy driven by another individual and went into the mall. The CI followed Miller into the mall. Subsequently, the CI left the mall and entered the undercover vehicle. Shortly thereafter, Miller came out of the mall and entered the undercover vehicle. Miller then produced two plastic baggies containing ecstasy that he referred to as “the sex kind.” The detectives paid Miller $600.00 for the pills, discussed purchasing more marijuana, and asked if they could get a better price on the ecstasy next time. Miller told Detective Seiss that she could get a better price at their next transaction. Moreover, Miller also said yes when Detective Smith asked if she could get a “jar” of ecstasy next time.
On March 8, 2006, Detective Seiss and the CI made arrangements to purchase a “jar” of ecstasy. Detective Seiss, Detective Smith, and the CI again waited for Miller in the mall parking lot. The CI went into the mall two or three times to locate Miller, but he was busy cutting hair. Subsequently, Miller arrived in an Impala, driven by the same individual from the March 3rd buy. Miller exited the car, went into the trunk of the Impala, and obtained a white plastic grocery bag. Miller then met the CI outside the mall in plain view of Detective Seiss and Detective Smith. Immediately following, both men went directly to and entered the undercover vehicle.
Miller only had nine ecstasy pills in the bag and apologized for not having the 100 that the detectives had ordered. Additionally, Miller had one-half pound of marijuana but asked the detectives to come back later to make the marijuana purchase because the drug was not properly “broken down and weighed” yet. Consequently, Detective Smith purchased the nine ecstasy pills for a total of $220.00. After the purchase, Miller exited Detective Seiss’ undercover vehicle and was arrested.
The State charged Miller with two counts of Class A felony dealing in a schedule I, II, or III controlled substance; one count of Class D felony possession of marijuana; and two counts of dealing in marijuana. At his jury trial, Miller testified that he was a marijuana dealer; however, he denied being a pill dealer. Id. at 352. Additionally, Miller testified that the CI supplied him with the ecstasy pills that he sold to the detectives. Id. at 368. Following trial, Miller was found guilty as charged on all counts. The trial court imposed a sentence of thirty years each on Counts I and III (the controlled substance counts); one and one-half years on Count II; four years
3 on Count IV; and four years on Count V. The trial court ordered the sentences to be served concurrently. Miller now appeals.
Miller v. State, No. 02A03-0611-CR-523 (Ind. Ct. App. Sept. 4, 2007) (citations and
footnotes omitted), trans. denied. On appeal, Miller argued that the State had failed to
rebut his argument that he was not predisposed to commit the crime and therefore
disprove his entrapment defense. This Court affirmed, and the Supreme Court denied
transfer. Id.
Miller then filed a post-conviction relief petition, alleging ineffective assistance of
both trial counsel and appellate counsel, and abuse of discretion of the trial court.
Appellant’s App. p. 38, 51. Miller argued that his trial counsel was ineffective for not
arguing an entrapment defense for being within 1000 feet of an elementary school while
at Pontiac Mall, not tendering a jury instruction about entrapment, and withholding
information during trial. Id. at 38-45. Specifically, Miller noted that his trial counsel
witnessed communication between Juror 9 and one of the State’s witnesses and never
informed him of the exchange. Id. at 45. Miller also argued that his appellate counsel
was ineffective for not raising a fundamental error claim on appeal in regards to Juror 15.
Id. at 51. Juror 15 received a summons in the mail but had not filled out the juror
questionnaire when he was seated in the jury, in violation of Indiana Jury Rule 5. Both
parties were aware of this during voir dire and neither objected, and Miller’s appellate
counsel did not raise this issue on appeal. Finally, Miller argued that the trial court
abused its discretion by not conducting a hearing about the communication between Juror
9 and a State’s witness to assess potential bias.
4 The post-conviction court denied Miller’s petition for post-conviction relief.
Miller now appeals.
Discussion and Decision
The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004). When appealing from the denial of
post-conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Id. On review, we will not reverse the judgment unless the evidence
as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the
post-conviction court. Id. The post-conviction court in this case entered findings of fact
and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). 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. Id. The post-conviction court is the sole judge of the weight of the evidence and
the credibility of witnesses. Id. We accept findings of fact unless clearly erroneous, but
we accord no deference to conclusions of law. Id.
I. Evidentiary Hearing
Miller first contends that the post-conviction court erred in denying his request for a
hearing. We disagree. Indiana Post-Conviction Rule 1(5) governs post-conviction
hearings and provides in relevant part:
The petition shall be heard without a jury . . . . The court may receive affidavits, depositions, oral testimony, or other evidence and may at its discretion order the applicant brought before it for the hearing. The
5 petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence.
Additionally, Indiana Post-Conviction Rule 1(9) provides further guidance on the matter,
and states:
In the event petitioner elects to proceed pro se, the court at its discretion may order the cause submitted upon affidavit. It need not order the personal presence of the petitioner unless his presence is required for a full and fair determination of the issues raised at an evidentiary hearing.
Therefore, if a petitioner proceeds pro se, as Miller did, the trial court may decide that the
cause should be submitted by affidavit, and “it is the court’s prerogative to determine
whether an evidentiary hearing is required, along with the petitioner’s personal presence,
to achieve a ‘full and fair’ determination of the issues raised[.]” Smith v. State, 822
N.E.2d 193, 201 (Ind. Ct. App. 2005) (citing Ind. Post-Conviction Rule 1(9)(b)), trans.
denied.
In this case, the trial court determined that a full and fair determination of the
issues could be made from affidavits alone, and a hearing was not required. Under Post-
Conviction Rule 1(9), this is within the trial court’s discretion. Miller argues that our
decision in Kuhn v. State, 901 N.E.2d 10 (Ind. Ct. App. 2009), requires that he be allowed
a hearing, but we disagree. In Kuhn, the trial court set three different hearings for Kuhn’s
petition for post-conviction relief, but Kuhn failed to appear at all of them. Id. at 12. On
the third hearing date, the trial court conducted the hearing in Kuhn’s absence, which we
found to be in error. Id. at 13. However, we specifically noted in Kuhn that the State
asserted, “[n]or is there any indication that the trial court chose to allow [Kuhn] to
proceed by affidavit, deciding his personal presence at the hearing was unnecessary.” Id.
6 at 13 n.2. Therefore, the holding in Kuhn does not apply to cases like the present one
where the trial court has decided that the case should be submitted by affidavit; Miller’s
reliance on Kuhn is in error, and an evidentiary hearing was not required in this case.
We hold that the post-conviction court did not err in denying Miller’s request for
an evidentiary hearing. Post-Conviction Rule 1(9) specifically allows this if a petitioner
proceeds pro se, as was the case here.
II. Ineffective Assistance
Miller also contends that the post-conviction court erred in finding that he received
effective assistance of counsel at both the trial and appellate level. We disagree. To
prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both
that his counsel’s performance was deficient and that the petitioner was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to
satisfy either prong will cause the claim to fail. French v. State, 778 N.E.2d 816, 824
(Ind. 2002). Counsel’s performance is deficient if it falls below an objective standard of
reasonableness based on prevailing professional norms. Id. Counsel is afforded
considerable discretion in choosing strategy and tactics, and we will accord those
decisions deference. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). A strong
presumption arises that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Id. To meet the
appropriate test for prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
7 have been different. Id. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).
A. Trial Counsel
Miller argues that his trial counsel was ineffective in three ways: (1) he failed to
investigate whether Miller had a statutory defense available to him under Indiana Code
section 35-48-4-16(c); (2) he failed to tender a jury instruction based on that statutory
defense; and (3) he withheld information from Miller about a communication between a
juror and one of the State’s witnesses. We disagree.
1. Statutory Defense
Miller contends that he had a statutory defense to his conviction for dealing in a
controlled substance available to him under Indiana Code section 35-48-4-16(c), which
states:
It is a defense for a person charged under this chapter with an offense that contains an element listed in subsection (a) that a person was in, on, or within one thousand (1,000) feet of school property, a public park, a family housing complex, or a youth program center at the request or suggestion of a law enforcement officer or an agent of a law enforcement officer.
However, the post-conviction court found that there was no evidence in the record that
the police or the confidential informant induced Miller to choose a location within 1000
feet of a school. See Appellant’s App. p. 24-25. Specifically, the post-conviction court
found that the evidence
establishes that the reason why the transactions occurred at that location was because Mr. Miller, who was employed at that location, confirmed that he was ready and willing to sell drugs at that location, without any regard to any known request or suggestion by the [confidential informant] or the police that the transactions should take place there rather than somewhere else. 8 Id. at 21.
However, Miller argues that it would not be unreasonable for a jury to find that he
was summoned to the mall, within 1000 feet of a school, at the direction of the police.
He also argues that our holding in Bell v. State, 881 N.E.2d 1080, 1086 (Ind. Ct. App.
2008), trans. denied, is applicable to this case. Bell holds that an entrapment defense is
available when a defendant is directed to a location within 1000 feet of a school, public
park, family housing complex, or youth program center “at the behest of the police.” Id.
But, because there was no “known request or suggestion” by the police that the drug
transactions take place at Miller’s place of employment, the holding in Bell does not
apply here. Additionally, Miller has provided no argument that contradicts the post-
conviction court’s finding about a lack of such evidence. Therefore, his argument that it
would not be unreasonable for a jury to find that he was summoned to the mall at the
direction of the police is without merit.
The post-conviction court also did not err in finding that Miller’s trial counsel was
not ineffective for failing to investigate a statutory defense under Indiana Code section
35-48-4-16(c). In reviewing a court’s decision to give or refuse a tendered jury
instruction, we consider “(1) whether the instruction correctly states the law; (2) whether
there is evidence in the record to support the giving of the instruction; and (3) whether the
substance of the tendered instruction is covered by other instructions that are given.”
Gracia v. State, 976 N.E.2d 85, 90 (Ind. Ct. App. 2012). Since there is no evidence in the
record to support the giving of the instruction, the post-conviction court did not err in
9 finding that Miller’s trial counsel was also not ineffective for failing to tender a jury
instruction based on that statutory defense.
2. Juror Communication
Miller also argues that his trial counsel was ineffective for “withholding
information about communication between a witness and a juror.” Appellant’s Br. p. 12.
The record shows that Miller’s trial counsel was aware of communication between Juror
9 and one of the State’s witnesses in which they “exchanged hellos, basically.” Id. at 23.
Trial counsel determined that this exchange would not have an effect on Juror 9’s
impartiality and therefore did not make an issue of the communication. Miller contends
that this was ineffective assistance. We disagree.
There is a strong presumption that counsel gave adequate assistance and exercised
reasonable professional judgment in making all significant decisions. Timberlake, 753
N.E.2d at 603. Additionally, we afford counsel substantial discretion in choosing
strategy and tactics, and we will accord deference to those decisions. Id. Deciding not to
make an issue of the communication between Juror 9 and the State’s witness was a
strategic decision made by Miller’s counsel, and Miller has provided nothing in the
record to suggest that this was unreasonable. We must defer to the judgment of Miller’s
counsel and therefore hold that the post-conviction court did not err in finding that
Miller’s counsel was not ineffective for withholding information about this exchange.
B. Appellate Counsel
Finally, Miller contends that his appellate counsel was ineffective in two ways: (1)
he failed to raise an argument that the trial court abused its discretion in failing to hold a
10 hearing to analyze potential bias resulting from the communication between the juror and
the State’s witness, and (2) he failed to argue fundamental error for the trial court’s
failure to disqualify a juror who did not fill out a juror questionnaire. We disagree.
The standard of review for a claim of ineffective assistance of appellate counsel is
the same as for trial counsel. Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). There
are three ways in which appellate counsel may be considered ineffective: (1) when
counsel’s actions deny the defendant his right of appeal; (2) when counsel fails to raise
issues that should have been raised on appeal; and (3) when counsel fails to present
claims adequately and effectively such that the defendant is in essentially the same
position after appeal as he would be had counsel waived the issue. Grinstead v. State,
845 N.E.2d 1027, 1037 (Ind. 2006). The decision of what issues to raise on appeal is one
of the most important strategic decisions made by appellate counsel. Bieghler v. State,
690 N.E.2d 188, 193 (Ind. 1997). Thus, we give considerable deference to appellate
counsel’s strategic decisions and will not find deficient performance in appellate
counsel’s choice of some issues over others when the choice was reasonable in light of
the facts of the case and the precedent available to counsel at the time the decision was
made. Taylor v. State, 717 N.E.2d 90, 94 (Ind. 1999). To establish deficient
performance for failing to raise an issue, the petitioner must show that the unraised issue
was “clearly stronger” than the issues that were raised. Bieghler, 690 N.E.2d at 194.
1. Juror Communication
Miller first argues that his appellate counsel was ineffective for failing to argue on
appeal that the trial court abused its discretion by not holding a hearing to determine any
11 potential bias that resulted from the communication between Juror 9 and the State’s
witness. Miller contends that Remmer v. United States, 347 U.S. 277 (1954), mandates
such a hearing, but we find that argument to be unpersuasive. In Remmer, the Supreme
Court held that such a hearing is required when the communications are made about a
matter pending before the jury “if not made in pursuance of known rules of the court and
the instructions and direction of the court made during the trial, with full knowledge of
the parties.” Id. at 229. However, in the present case, the content of the communication
was solely an exchange of “hellos,” Appellant’s Br. p. 23, not a matter pending before the
jury. Additionally, Miller’s counsel was aware of the content of the communication and
determined that it was not prejudicial to his client. The communication was therefore not
the type contemplated by Remmer, so its holding does not apply.
The post-conviction court did not err in this regard.
2. Juror Disqualification
Finally, Miller argues that his appellate counsel was ineffective for failing to
challenge the selection of Juror 15 as fundamental error.
The fundamental-error doctrine is an exception to the general rule that the failure
to object at trial constitutes a procedural default precluding consideration of the issue on
appeal. Jewell v. State, 887 N.E.2d 939, 940 n.1 (Ind. 2008). The fundamental error
exception is extremely narrow and applies only when the error constitutes a blatant
violation of basic principles, the harm or potential for harm is substantial, and the
resulting error denies the defendant fundamental due process. Mathews v. State, 849
N.E.2d 578, 587 (Ind. 2006). The error claimed must either make a fair trial impossible
12 or constitute clearly blatant violations of basic and elementary principles of due process.
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g denied. This exception is
available only in egregious circumstances. Id.
In this case, Juror 15 did not fill out a juror questionnaire as required by Indiana
Jury Rule 5. However, Juror 15 received a summons in the mail, neither side objected to
his service on the jury, and both sides had the opportunity to ask any relevant questions
of Juror 15 during voir dire. Appellant’s App. p. 23. Based on these facts, we cannot say
that this amounts to an egregious circumstance in which the fundamental-error doctrine is
applicable. We therefore hold that the post-conviction court did not err in finding
Miller’s appellate counsel was not ineffective for failing to challenge the selection of
Juror 15 as fundamental error.
Affirmed.
BAILEY, J., and BROWN, J., concur.