MEMORANDUM DECISION Nov 05 2015, 8:30 am 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 establishing the defense of res judicata, collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE Eqwan Garrett Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Eqwan Garrett, November 5, 2015
Appellant-Petitioner, Court of Appeals Case No. 49A02-1408-PC-589 v. Appeal from the Marion Superior Court. The Honorable Steven Eichholtz, State of Indiana, Judge. Appellee-Respondent. The Honorable David Seiter, Commissioner. Cause No. 49G20-0908-PC-74802
Friedlander, Senior Judge
[1] Eqwan Garrett, pro se, appeals the denial of his petition for post-conviction
relief presenting the following consolidated and restated issues:
1. Did the post-conviction court err in rejecting Garrett’s claim of ineffective assistance of trial counsel.
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 1 of 25 2. Did the post-conviction court err in rejecting Garrett’s claim of ineffective assistance of appellate counsel. 3. Did the post-conviction court err in rejecting Garrett’s claim of ineffective assistance of post-conviction counsel. We affirm.
[2] The facts, as set forth by this Court in Garrett’s direct appeal, are as follows:
In 2007, after a year-long surveillance operation of a residence on North Pershing Avenue in Marion County, the Indianapolis Metropolitan Police Department (IMPD) suspected that the residence was used as a facility for the manufacture of cocaine. IMPD observed Garrett, along with several other individuals, frequent the residence approximately eight to ten times over the course of the surveillance. While conducting surveillance on July 24, 2007, Detective Jake Hart observed Garrett and two others park near the residence and carry a large duffle bag full of rifles. On August 14, 2007, officers with IMPD’s narcotic[s] division executed a ‘no-knock’ search warrant on the residence. SWAT team members Detective Garry Riggs, Sergeant Robert Stradling, and Officer Baker breached the residence through the front door using a battering ram. During this time, police officers loudly announced, ‘[P]olice, search warrant. Everybody get down on the ground!’ Upon entering the house, Detective Riggs and Sergeant Stradling noticed Garrett repeatedly popping out of the second bedroom, approximately ten to twelve feet away from them. Garrett again and again pointed a semi-automatic handgun at Detective Riggs and Sergeant Stradling. Each time, he attempted to fire the handgun, but it misfired. A second SWAT team entered the residence from the rear and secured Garrett in the second bedroom. Three other individuals were also in the house and arrested during the execution of the search warrant. The police then searched the residence for evidence. In the kitchen, police recovered cocaine, digital scales, over $8,000, and
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 2 of 25 an assault rifle. In the second bedroom, where police apprehended Garrett, they found a silver and black Smith & Wesson .40 caliber semi-automatic handgun within arm’s length of Garrett. No other suspects were in the second bedroom. In the living room, police recovered an additional assault rifle, two handguns, and a magazine for the handgun found near Garrett. The weapons in the living room were within ten feet of where Garrett had stood in the second bedroom.
Garrett v. State, No. 49A05-1101-CR-2, slip op. at 1-2 (Ind. Ct. App. Aug. 31,
2011) (internal citations to the record omitted), trans. denied.
[3] On August 15, 2007, the State charged Garrett under Cause Number 49G20-
0708-FA-167078 (FA-167078) with: conspiracy to commit dealing in cocaine, a
Class A felony; dealing in cocaine, a Class A felony; possession of cocaine, a
Class C felony; possession of a firearm by a serious violent felon (possession of
a firearm by a SVF), a Class B felony; and pointing a firearm, a Class D felony.
On January 22, 2009, the State moved to dismiss the charges, and the trial court
granted the motion.
[4] On August 25, 2009, the State charged Garrett under Cause Number 49G20-
0908-FA-74802 (FA-74802) with: Count I, conspiracy to commit dealing in
cocaine, a class A felony; Count II, dealing in cocaine, a class A felony; Count
III, possession of cocaine, a class C felony; Count IV, possession of a firearm by
a SVF, a class B felony; Count V, pointing a firearm, a class D felony; and
Count VI, possession of cocaine and a firearm, a class C felony. On November
3 and 4, 2010, a two-day jury trial was held on Counts I, II, III, V, and VI. The
jury found Garrett guilty on Counts, I, V, and VI. The jury convicted Garrett
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 3 of 25 on a lesser included offense on Count III and acquitted him on Count II.
Garrett waived his right to a jury trial on Count IV, possession of a firearm by a
SVF and, on November 24, 2010, the trial court found Garrett guilty.
[5] On appeal, Garrett argued that his convictions for possession of a firearm by a
serious violent felon and pointing a firearm violated Indiana’s constitutional
prohibition of double jeopardy. A panel of the Court affirmed the trial court’s
judgment. Id. at 3.
[6] On May 10, 2012, Garrett, pro se, filed a petition for post-conviction relief.
Following a hearing at which Garrett was represented by counsel, the trial court
denied the petition. Garrett appeals the denial of that petition on grounds that
he received ineffective assistance of counsel at every stage of the proceedings
against him.
[7] Post-conviction proceedings are civil proceedings in which the petitioner must
establish his claims by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5); Hollowell v. State, 19 N.E.3d 263 (Ind. 2014). “When appealing from
the denial of post-conviction relief, the petitioner stands in the position of one
appealing from a negative judgment.” Id. at 269 (quoting Fisher v. State, 810
N.E.2d 674, 679 (Ind. 2004)). In order to prevail on appeal from the denial of a
post-conviction petition, a petitioner must show that the evidence as a whole
leads unerringly and unmistakably to a conclusion opposite the one reached by
the post-conviction court. Hollowell, 19 N.E.3d 263. The post-conviction court
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 4 of 25 is the sole judge of the weight of the evidence and the credibility of witnesses.
Lindsey v. State, 888 N.E.2d 319 (Ind. Ct. App. 2008), trans. denied. We accept
the post-conviction court’s findings of fact unless they are clearly erroneous, but
no deference is given to the court’s conclusions of law. Hollowell, 19 N.E.3d
263.
1. [8] We begin with Garrett’s claim that he received ineffective assistance of trial
counsel. When evaluating such a claim, we apply the two-part test articulated
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). See Hollowell v. State, 19 N.E.3d 263. To establish the first element, “the
defendant must show deficient performance: representation that fell below an
objective standard of reasonableness, committing errors so serious that the
defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id.
at 269 (citing Strickland, 466 U.S. at 687). To establish the second element, “the
defendant must show prejudice: a reasonable probability (i.e. a probability
sufficient to undermine confidence in the outcome) that, but for counsel’s
errors, the result of the proceeding would have been different.” Id. (citing
Strickland, 466 U.S. 668).
[9] Garrett cites two instances that he claims warrant reversal of his convictions on
this basis. First, he contends trial counsel rendered ineffective assistance in
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 5 of 25 failing to move to suppress evidence obtained as a result of an allegedly illegal
search. Second, he claims that trial counsel rendered deficient, prejudicial
performance in “failing to file a proper motion to dismiss and/or discharge for
the violation of criminal rule [4(B)] and [4(C)].” Appellant’s Br. p. 4. Both
claims of deficient trial counsel performance involve counsel’s failure to file
motions on Garrett’s behalf – a motion to suppress evidence and a motion for
discharge under Indiana Criminal Rule 4. “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.” Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct. App.
2002), trans. denied.
[10] We turn to Garrett’s claim that his trial counsel should have moved to suppress
all evidence that was found at the Pershing Avenue house during execution of
the search warrant. Garrett contends the probable cause affidavit that the
police filed in support of their request for a search warrant failed to comply with
the requirements of Indiana Code Annotated section 35-33-5-2 (West, Westlaw
current with all 2015 First Regular Session of the 119th General Assembly
legislation). In particular, Garrett argues that the affiant “lacked a Substantial
Basis for concluding that Probable Cause existed and that contraband or
evidence of a crime would be found at [the named address] or upon the
petitioner’s person.” Appellant’s Br. p. 13 (emphasis in original). Garrett
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 6 of 25 further contends that the search warrant was flawed because it did not name 1 Garrett as a person to be searched.
[11] Beginning with the first contention, when deciding whether to issue a search
warrant, the issuing magistrate must make “a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit, there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.” Cartwright v. State, 26 N.E.3d 663, 668 (Ind. Ct. App. 2015), trans.
denied. Our duty upon review is to determine whether the magistrate had a
substantial basis for concluding that probable cause existed. Id. Although we
review the trial court’s substantial-basis determination de novo, we afford
significant deference to the magistrate’s determination. Id. In doing so, we
consider only the evidence presented to the issuing magistrate and do not
consider additional justifications or facts presented after the search. Id.
[12] The affidavit for probable cause, which was completed by FBI Special Agent
Robert Brouwer, was not included in the trial record. Nor did Special Agent
Brouwer testify at Garrett’s trial. In short, there is nothing in the trial record
reflecting the showing that was made in order to obtain the warrant. During
the post-conviction hearing, Garrett did not introduce the probable cause
affidavit into evidence. The post-conviction court took judicial notice of its file,
1 Garrett also argues that he has standing to challenge the search of the home, but we need not address this argument because the State does not dispute Garrett’s standing.
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 7 of 25 but the affidavit had not been placed in the file. Garrett’s trial attorney, Travis
Fox, was asked at the post-conviction hearing whether he considered the
possibility of filing a motion to suppress alleging lack of probable cause, and he
responded as follows:
Well, my recollection – I don’t think I did. I think that I summarily bypassed the suppression issue. My recollection of the facts of this case, our defense was based upon Mr. Garrett not having an interest in that property that he was merely a visitor. So, had I believe [sic] it was a search warrant being executed on the property, I don’t remember the basis for the search warrant, but I typically give the search warrant a read over and see if there is [sic] any issues relating to it. I’m guessing that I did that in Mr. Garrett’s case also. And then with him – without [sic] defense being that he was only at that property for a temporary status the combination of all that quite quickly leads me to the conclusion that there is no merit to a Motion to Suppress.
PCR Tr. pp. 17-18. This testimony does not shed light on the evidence that was
presented to the reviewing magistrate for issuance of a search warrant.
[13] We reiterate that Garrett bore the burden of establishing his claim by a
preponderance of the evidence. P-C.R. 1(5); Hollowell v. State, 19 N.E.3d 263.
He has failed to meet this burden because as he has not provided any evidence
pertaining to whether the magistrate who issued the warrant had a substantial
basis for concluding there was probable cause to believe a fair probability
existed that contraband or evidence of a crime would be found at the North
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 8 of 25 2 Pershing Avenue residence. His claim of ineffective assistance in this regard
fails.
[14] Garrett’s other challenge to the search of the Pershing Avenue house is that he
claims the search warrant should have identified him by name as a person to be
searched. Indiana Code section 35-33-5-2 does not require that a warrant
targeting a particular premises must identify persons who may be searched in
that premises based upon developments ensuing from the execution of the
warrant. The warrant in question identified the house in detail, as well as the
items to be sought. When officers entered the home to search the premises,
Garrett was armed with a handgun and attempted to shoot the officers, but
fortunately the gun was inoperable. Officers were able to subdue him before he
could successfully discharge the weapon and searched him in the course of
arresting him. The warrant was not flawed in this respect. See Foster v. State,
633 N.E.2d 337 (Ind. Ct. App. 1994) (search of defendant was valid, even
though the search warrant did not authorize search of particular person or
mention the defendant, where police had warrant authorizing search of
particular premises for particular items and conducted the search accordingly),
trans. denied. The post-conviction court properly determined that trial counsel
did not render ineffective assistance on this point.
2 Garrett has included a copy of the probable cause affidavit in his Appellant’s Appendix. We may not consider it because he concedes that it was not presented to the post-conviction court.
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 9 of 25 [15] Next, Garrett contends his trial attorneys in FA-167078 and FA-74802 rendered
ineffective assistance by failing to file motions to dismiss the charges pursuant 3 to Indiana Rule of Criminal Procedure 4, subsections (B) and (C). That rule
provides, in relevant part:
(B)(1) Defendant in Jail – Motion for Early Trial. If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as set forth in subdivision (A) of this rule. **** (C) Defendant Discharged. No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the
3 Garrett also argues in passing that his trial attorneys should have claimed that the State violated his right to a speedy trial under the Sixth Amendment to the United States Constitution and article 1, section 12 of the Indiana Constitution. He does not present any argument in support of his constitutional claims, so they are waived. See Bigler v. State, 732 N.E.2d 191 (Ind. 2000) (claim waived for appellate review because appellant failed to present cogent argument), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 10 of 25 prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Id.
[16] The broad goal of Criminal Rule 4 is to provide functionality to a criminal
defendant’s constitutionally protected right to a speedy trial. Austin v. State, 997
N.E.2d 1027 (Ind. 2013). It places an affirmative duty on the State to bring the
defendant to trial, but at the same time it is not intended to be a mechanism for
providing defendants a technical means to escape prosecution. Id.
[17] Garrett argues that his trial attorney in FA-167078 should have moved to
dismiss with prejudice the charges against him because the deadlines set forth in
Rule 4(B) and (C) were exceeded. Turning to the issue of Rule 4(B), a
chronological case summary entry for April 4, 2008, states that the parties
appeared for a pretrial hearing, and “Defendant’s speedy trial request is still
active.” Appellant’s App. pp. 10-11. That is the first reference to a speedy trial
request. On April 30, 2008, Garrett “wavies [sic] his speedy request and then
re-asserts it.” Id. at 12. A fair reading of that entry indicates that the seventy-
day deadline was reset and began to run once again. The trial court reset the
trial for July 2, 2008, sixty-three days from the date of that hearing.
[18] On July 3, 2008, the court held another pretrial hearing. That hearing was not
included in the trial transcript. The chronological case summary indicates that
the State requested a continuance, and Garrett objected. The court granted the
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 11 of 25 continuance over Garrett’s objection, scheduling a trial for September 22, 2008.
If the court issued an order reflecting the new date, it was not included in the
trial record.
[19] On September 17, 2008, the court held yet another pre-trial conference. That
hearing was not included in the transcript. During the hearing, the court
vacated the trial date and rescheduled it for September 29, 2008, although the
defendant again objected. On September 18, Garrett filed a motion for
continuance. The court granted the motion and indicated that it would reset
the trial date at an upcoming hearing. If the court issued an order reflecting the
new date, it was not included in the trial record.
[20] The court held additional pretrial hearings on September 24 and 25, 2008. The
hearings were not included in the transcript. According to a chronological case
summary entry, the issues the court addressed included “Crim Rule 4.” Id. at
22. The court, by the agreement of the parties, released Garrett on his own
recognizance, and Garrett remained free until the State dismissed the case.
[21] The record reflects that Garrett objected to two continuances, both of which
resulted in rescheduling the trial beyond the seventy-day deadline. Rule 4(B)
permits extensions of the trial date, even over the defendant’s objection, in cases
of court congestion or if the State is in the process of obtaining evidence that is
currently not in its possession. See Cook v. State, 810 N.E.2d 1064, 1065 (Ind.
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 12 of 25 2004) (“The rule places an affirmative duty on the State to bring a defendant to
trial within one year of being charged or arrested, but allows for extensions of
that time for various reasons.”). The record does not indicate why the trial
court reset the trial date over Garrett’s objections or why he was released on his
own recognizance. During the post-conviction hearing, one of Garrett’s trial
attorneys stated that prior to trial, he had reviewed the chronological case
summary for Lower Cause Number FA-167078 and had concluded “there
wasn’t a CR4 issue for Mr. Garrett.” PCR Tr. p. 12.
[22] In this post-conviction proceeding, Garrett, as the petitioner, bore the burden of
providing the evidence necessary to establish ineffective assistance, that is, that
the trial court failed to assert a valid reason for overruling his objections to
rescheduling the trial, resulting in scheduling the trial beyond the seventy-day
deadline. For purposes of Garrett’s Rule 4(B) claim as it pertains to Lower
Cause Number FA-167078, the record is inadequate to allow us to determine
whether the continuances were justified, and thus whether a motion for
discharge and dismissal would have been warranted. Garrett has failed to
provide sufficient evidence, and we cannot review the merits of this claim.
[23] Turning to Garrett’s 4(C) claim under Lower Cause Number FA-167078, the
record provided by Garrett has the same shortcomings. We are unable to
determine the reasons for the trial court’s continuances over Garrett’s
objections, and we cannot ascertain whether the continuances were valid. If the Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 13 of 25 continuances met the requirements of Rule 4(C), then they do not count against
the Rule 4(C) deadline.
[24] In any event, we further note Garrett was originally charged on August 15,
2007, and the one-year deadline would have expired on or before August 15,
2008. On April 30, 2008, Garrett “wavies [sic] his speedy request and then re-
asserts it.” Appellant’s App. p. 12. He thus agreed to waive the time that had
elapsed to that point and to reset the deadline. The State was obligated to try
him on or before April 30, 2009. The State dismissed the charges on January
22, 2009, well before that deadline. Thus, despite the gaps in the evidence
provided by Garrett, it appears that the one-year deadline set forth under
Appellate Rule 4(C) was not exceeded. If any of Garrett’s trial counsels had
moved for discharge or dismissal under Rule 4(C) as to FA-167078, the motion
would have been denied. Counsel cannot have rendered ineffective assistance
by failing to file a motion that would have been denied.
[25] In summary, the post-conviction court did not err in rejecting Garrett’s claim of
ineffective assistance of trial counsel for failure to claim that the State had
violated Criminal Rule 4(B) and (C) in Cause Number FA-167078.
[26] Next, under FA-74802, the State refiled the charges on August 22, 2009.
Garrett was not arrested and jailed until November 13, 2009. He had several
different attorneys in FA-74802, and he claims two of them rendered ineffective
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 14 of 25 assistance by failing to file motions to discharge and dismiss pursuant to
Criminal Rule 4(B) and 4(C).
[27] We turn to Garrett’s arguments under Rule 4(B). He claims his first attorney in
FA-74802, Marla Thomas, should had filed a motion to dismiss “immediately”
upon filing her appearance on November 30, 2009, due to the delays in FA-
167078. Appellant’s Br. p. 8. We have already determined that Garrett has
failed to provide a sufficient record to address his Rule 4(B) claim as to FA-
167078. It follows that we also cannot address whether Attorney Thomas
should have moved for discharge under Rule 4(B).
[28] Next, Garrett claims that a subsequent attorney in FA-74802, Travis Fox,
should have filed a motion for discharge and dismissal upon filing his
appearance on June 9, 2010. Garrett cites delays in FA-167078 as justifying the
motion, but he has provided an insufficient record for us to determine whether
a Rule 4(B) motion for discharge and dismissal would have succeeded as to
events in that case.
[29] Garrett also claims that Attorney Fox should have filed a motion for discharge
upon filing his appearance because delays in FA-74802 violated Rule 4(B). We
disagree, because Garrett did not request a speedy trial through counsel until
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 15 of 25 4 April 13, 2010. Attorney Fox appeared in the case on June 9, 2010, and only
fifty-seven days had elapsed in the seventy-day period. A motion for discharge
pursuant to Rule 4(B) would not have been successful at that time. Attorney
Fox did not perform deficiently by failing to file a motion that would have been
denied.
[30] Turning to Criminal Rule 4(C), Garrett again asserts that Attorneys Thomas
and Fox should have filed motions for discharge and dismissal in FA-74802
along with their appearances. Rule 4(C)’s one-year deadline was tolled by the
State’s dismissal of charges in FA-167078 until Garrett was rearrested on
November 13, 2009. See Stinson v. State, 797 N.E.2d 352 (Ind. Ct. App. 2003).
The State concedes, and Garrett does not disagree, that 138 days that counted
against Rule 4(C)’s one-year deadline carried over to FA-74802 from FA-
167078.
[31] Attorney Thomas entered her appearance on November 30, 2010, twenty-seven
days after Garrett was arrested. The twenty-seven days are not attributable to
Garrett and, when added to the 138 days that carried over from FA-167078,
results in a total of 165 days, which was well-short of the one-year deadline set
4 Garrett tendered pro se motions for speedy trial in March 2010, but the trial court rejected them because Garrett was represented by counsel. The court was not obligated to consider the motions. See Underwood v. State, 722 N.E.2d 828 (Ind. 2000) (a party speaks to the court through counsel).
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 16 of 25 forth in Rule 4(C). Attorney Thomas could not have succeeded on a motion for
discharge if she had filed one with her appearance, so she did not render
deficient performance by declining to file that motion.
[32] As for Attorney Fox, he entered his appearance on June 9, 2010. At that point,
208 days had elapsed since Garrett was arrested on November 13, 2009.
Assuming without deciding that none of the 208 days were attributable to
Garrett, if that number is added to the 138 days that carried over from FA-
167078, the total number of days that counted against the 365-day deadline was
346, still short of the deadline. Thus, if Attorney Fox had filed a motion for
discharge and dismissal contemporaneously with his appearance, the motion
would have been denied. Attorney Fox did not render deficient performance
on this point.
[33] Garrett does not offer any other arguments under Criminal Rule 4(B) and (C),
nor does he demonstrate prejudice resulting from deficient performance. See
Heyward v. State, 769 N.E.2d 215 (Ind. Ct. App. 2002) (petitioner failed to
demonstrate prejudice arising from attorney’s failure to object to Rule 4(C)
violation because, if he had timely objected, the trial court would have
rescheduled the date, so petitioner failed to demonstrate the outcome would
have been different). The post-conviction court did not err in rejecting Garrett’s
claim of ineffective assistance of trial counsel for failure to claim that the State
had violated Criminal Rule 4(B) and (C) in FA-74802. Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 17 of 25 [34] We affirm the post-conviction court’s rejection of Garrett’s claims of ineffective
assistance of trial counsel.
2. [35] We next consider Garrett’s claim that he received ineffective assistance of
appellate counsel. As was the case with his claims pertaining to trial counsel, in
order to prevail on a claim of ineffective assistance of appellate counsel, a
petitioner must demonstrate both that counsel’s performance was deficient and
that the petitioner was prejudiced thereby. Kubsch v. State, 934 N.E.2d 1138
(Ind. 2010) (citing Strickland, 466 U.S. 668). Counsel’s performance is deficient
if it falls below an objective standard of reasonableness and “counsel made
errors so serious that counsel was not functioning as ‘counsel’ guaranteed to the
defendant by the Sixth Amendment.” Id. at 1147 (quoting Strickland, 466 U.S.
at 687)).
[36] To establish the requisite prejudice, a petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Smith v. State,
765 N.E.2d 578, 585 (Ind. 2002). The two elements of Strickland are separate
and independent inquiries. The failure to satisfy either component will cause
an ineffective assistance of counsel claim to fail. Taylor v. State, 840 N.E.2d 324
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 18 of 25 (Ind. 2006). Thus, if it is easier to dispose of such a claim on the ground of lack
of sufficient prejudice, that course should be followed. Landis v. State, 749
N.E.2d 1130 (Ind. 2001).
[37] Garrett argues that his counsel on direct appeal rendered ineffective assistance
because she failed to raise the Criminal Rule 4 issues discussed above. We have
already determined that Garrett’s claims of ineffective assistance of trial counsel
in relation to Criminal Rule 4 are without merit, and as a result any claim on
direct appeal that the trial court had violated Criminal Rule 4 would have
failed. Appellate counsel did not render ineffective assistance on this point by
failing to raise the issue.
[38] Garrett next argues that his appellate counsel should have challenged the
sufficiency of the evidence for his conviction of conspiracy to commit dealing in
cocaine. He asserts that there is no evidence from which the jury could have
determined that he knew there was cocaine in the house or that there was an
ongoing cocaine manufacturing enterprise.
[39] When reviewing a claim of insufficient evidence, an appellate court considers
only the probative evidence and reasonable inferences supporting the verdict.
Kirk v. State, 974 N.E.2d 1059 (Ind. Ct. App. 2012), trans. denied. We do not
assess the credibility of witnesses or reweigh evidence. Id.
[40] In order to obtain a conviction for conspiracy to commit dealing in cocaine as
charged, the State was required to prove beyond a reasonable doubt that Garrett
(1) acting with the intent to commit dealing in cocaine, (2) agreed with his co- Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 19 of 25 conspirators (3) to knowingly possess with intent to deliver or possessed with
intent to manufacture (4) cocaine in a an amount greater than three grams. Ind.
Code Ann. § 35-41-5-2 (West, Westlaw current with all 2015 First Regular
Session of the 119th General Assembly legislation); Ind. Code Ann. § 35-48-4-1 5 (West, Westlaw 2006).
[41] The evidence presented at trial demonstrated that the police engaged in
extensive surveillance of the Pershing Avenue house for almost a year before
applying for a search warrant. The house was owned by the father of Willie
Stott, one of Garrett’s companions. Surveillance was often difficult because
lookouts were stationed at nearby houses and would shout warnings when they
saw the police. Despite these challenges, officers saw Stott, Courtney Long,
James Sublett, and Garrett together at the Pershing Avenue house between
eight and ten times. Officers also saw Long, Sublett, and Garrett visit the house
separately twice a month each.
[42] On July 24, 2007, an officer saw Long, Sublett, and Garrett traveling together
in a car that was registered to Stott. The officer followed them to the Pershing
Avenue house, where he saw the three men get out of the car and enter the
5 The version of the governing statute, i.e., Ind. Code Ann. § 35-48-4-1 (West, Westlaw 2006), in effect at the time this offense was committed classified it as a class A felony. This statute has since been revised and in its current form reclassifies this as a Level 4 felony. See I.C. § 35-48-4-1 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this offense was committed prior to that date, it retains the former classification.
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 20 of 25 house together. The officers saw the men carrying a duffle bag with rifle
muzzles sticking out.
[43] From July 24 through August 14, 2007, an officer saw Long, Sublett, and
Garrett travel in Stott’s car to the house. The house was very small. It had
surveillance cameras on the front and back, a configuration that one of the
officers testified is sometimes used by individuals who deal in cocaine.
[44] When the officers executed the search warrant at the house, Stott, Long, Sublett
and Garrett were present. A team of officers used a battering ram to open the
front door. It took four to six strikes to force the door open because it was
being propped up by a piece of wood inside of the house. The officers loudly
identified themselves as police officers as they entered. Once they were inside,
they secured three of the men, but Garrett popped out of a doorway three to
four times, ten to fifteen feet from the officers. He pointed a handgun at the
officers and moved his hand in a manner consistent with attempting to fire the
gun. The gun did not fire because, although there was a round in the gun’s
chamber, the magazine had been removed from the gun, rendering it
inoperable. Another team of officers entered the house through the back door
and secured Garrett in a bedroom. All four men were wearing latex gloves,
which an officer testified is a practice consistent with persons involved in
manufacturing crack cocaine.
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 21 of 25 [45] Meanwhile, the first team of officers found an assault rifle and two handguns in
the front room. Later, another assault rifle was found in the kitchen, and a
handgun was found in the room where Garrett had been subdued.
[46] The house was not being used in a manner that was consistent with a residence.
There was relatively little furniture and very few decorations. Only one of the
bedrooms contained a bed, which lacked sheets, and there were very few
clothes in either bedroom. Firearms and bullets were scattered throughout the
common areas of the house. The assault rifles contained magazines and were
ready to fire.
[47] In the kitchen, officers found few dishes. They opened one cabinet and found
two digital scales that had cocaine residue, next to a box of baking soda. A
detective testified that scales are commonly used to measure narcotics into
smaller amounts, and baking soda is used to mix with powder cocaine to make
crack cocaine. On top of the cabinet, they found blue porcelain bowls that
contained 61.93 grams of cocaine, an amount that an officer explained is more
consistent with dealing in cocaine rather than merely using it. The officers also
found stacks of twenty dollar bills on top of another cabinet, $8,000 in total.
The police characterized the house as a “stash house,” where a small group of
narcotics dealers process drugs for sale. Trial Tr. p. 409.
[48] Meanwhile, officers had placed the four men in an enclosed front porch area
that had previously been searched for contraband and deemed secure. Officers
found two small baggies of cocaine near the four men during the process of
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 22 of 25 searching the house. In addition, the officers searched Garrett before he was
taken to jail, and they found a third baggie of cocaine on his person. The
officers did not find any items in the house or on Garrett’s person that could be
used to consume cocaine.
[49] This evidence is more than sufficient for a jury to conclude beyond a reasonable
doubt that Garrett agreed to join with Stott, Long, and Sublett to deal in
cocaine in an amount greater than three grams and was well aware of the
cocaine manufacturing operation at the Pershing Avenue house. The house
was not a residence but was instead the hub of an illegal narcotics venture that
would have been obvious to a frequent visitor. Garrett and his companions
visited the house on many occasions, including once when they delivered rifles.
[50] When the police executed the search warrant, Garrett attempted to shoot the
officers, who loudly identified themselves as police. Garrett and his
companions were all wearing latex gloves when they were apprehended, which
is consistent with persons manufacturing cocaine for sale, and several of them
had smaller baggies of cocaine on their person. Firearms and bullets were
scattered around the house. Garrett’s claim that he did not know about the
61.93 grams of cocaine that was concealed in the kitchen is a request to reweigh
the evidence, which our standard of review forbids. See Massey v. State, 816
N.E.2d 979 (Ind. Ct. App. 2004) (evidence sufficient to support conviction for
dealing in cocaine where State proved circumstances that established
defendant’s knowledge of the presence of contraband). If his appellate attorney
had challenged the sufficiency of the evidence supporting the conviction, that
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 23 of 25 claim would have failed. Counsel did not render deficient performance by
failing to present a futile claim, and the post-conviction court did not err in
ruling against Garrett on this issue.
3. [51] Finally, we address Garrett’s claim that he received ineffective assistance of
post-conviction counsel. Neither the Sixth Amendment of the United States
Constitution nor article 1, section 13 of the Indiana Constitution guarantee a
right to counsel in post-conviction proceedings. Graves v. State, 823 N.E.2d
1193 (Ind. 2005). Post-conviction proceedings are not criminal actions and are
not conducted under the standards applicable to such actions. Id.
Consequently, when a petitioner raises a claim of ineffective assistance of post-
conviction counsel, we consider whether “counsel in fact appeared and
represented the petitioner in a procedurally fair setting which resulted in a
judgment of the court.” Id. at 1196.
[52] In this case, Garrett’s post-conviction counsel appeared at the post-conviction
hearing and submitted evidence in the form of witness testimony, the trial
transcript, and the chronological case summaries from FA-167078 and FA-
74802. Counsel thus met the standard set forth in Graves. Garrett argues that
post-conviction counsel should have amended his petition for post-conviction
relief to add other claims, submitted additional evidence at the hearing, and
submitted proposed findings of facts and conclusions thereon. Such actions are
not required under the standard set forth in Graves. See Matheney v. State, 834
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 24 of 25 N.E.2d 658 (Ind. 2005) (post-conviction counsel’s choice to present some
claims and not others did not amount to ineffective assistance).
[53] For the reasons stated above, we affirm the judgment of the trial court.
[54] Judgment affirmed.
Baker, J., and Najam, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1408-PC-589 | November 5, 2015 Page 25 of 25