Leroy Butler v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 9, 2020
• Docket: 20A-PC-658
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 09 2020, 8:43 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Leroy Butler Curtis T. Hill, Jr. Pendleton, Indiana Attorney General of Indiana

Jesse R. Drum Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Leroy Butler, December 9, 2020 Appellant-Petitioner, Court of Appeals Case No. 20A-PC-658 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable David Neal Appellee-Respondent. Riggins, Judge Trial Court Cause No. 73D02-1904-PC-5

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 1 of 14 Case Summary [1] Leroy Butler appeals the denial of his pro se petition for post-conviction relief,

raising the following two restated issues:

1. Did the post-conviction court err when it denied Butler’s Ind. Trial Rule 56 motion for summary judgment? 2. Did the post-conviction court err when it determined that Butler’s trial counsel was not ineffective for not filing a motion to suppress?

[2] We affirm.

Facts & Procedural History [3] On August 17, 2015, Shelbyville Police Department dispatch received an

anonymous call reporting that someone was believed to be possessing or

dealing narcotics from a green car. The caller provided the location of the

residence where the car was last seen and its license plate number. Officer

James Jones drove to the location, and the described vehicle was in the

driveway. He parked in a nearby location, while another officer watched the

car and told Officer Jones when it was leaving the residence. Officer Jones

followed the subject car, observed it fail to make a complete stop at a stop sign,

and initiated a traffic stop. Officer Jones asked the driver for identification, and

Butler identified himself. There was an active warrant for Butler’s arrest, and

Officer Jones arrested Butler. As the registered owner of the vehicle was not

present, the vehicle was towed. During a search of the vehicle, officers found

methamphetamine and a glass pipe in the passenger compartment and, in the

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 2 of 14 trunk, officers found methamphetamine, marijuana, and a digital scale. The

State charged Butler with dealing in methamphetamine, possession of

methamphetamine, and maintaining a common nuisance.

[4] At the August 2016 jury trial, Officer Jones testified to following the car and

observing it fail to make a complete stop at a stop sign before it turned. He

described, “The way I do it is I watch their rims. If their rims do not come to a

full resting position . . . that is considered not coming to a complete stop[,]” and

“the vehicle did that” at the stop sign as it was turning south. Exhibits Vol. at

10. On cross-examination, counsel questioned Officer Jones in more detail

concerning his exact location when he saw Butler’s vehicle at the stop sign, and

Officer Jones pointed to his location on a map and said, “So I had a view

through here of the vehicle’s tires.” Id. at 57.

[5] The jury found Butler guilty of all three charges. At the sentencing hearing,

Butler stated that he had a substance-abuse problem, including drinking

alcohol. The trial court merged the possession and dealing charges and

convicted Butler of dealing in methamphetamine and maintaining a common

nuisance, sentencing him to a total of twenty years, with eighteen years to be

served in the Indiana Department of Correction and two years suspended to

probation. On direct appeal, Butler asserted that a probation condition

prohibiting him from entering any establishment that sells alcohol was

overbroad. We agreed, revised the condition, and remanded for further

proceedings. Butler v. State, No. 73A01-1609-CR-2238 (Ind. Ct. App. April 7,

2017).

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 3 of 14 [6] On April 9, 2019, Butler, pro se, filed a petition for post-conviction relief

asserting that his trial counsel was ineffective for (1) failing to file a motion to

suppress the evidence seized during what Butler claims was an illegal, pre-

textual traffic stop, and (2) for failing to object during trial to certain testimony

of Officer Jones that Butler claimed violated a motion in limine. Butler also

alleged that his appellate counsel was ineffective for failing to raise certain

issues on appeal, including ineffective assistance of trial counsel.

[7] Butler filed a number of discovery requests and motions during the pendency of

his post-conviction petition, including a motion for declaratory judgment, a

request for judicial notice to supplement/preserve evidence, motions to compel,

a second motion for declaratory judgment, and motion for change of venue

from the judge, in which Butler asserted that the judge was “extremely biased”

against him, did not hold the State in contempt for alleged failures to comply

with discovery, and “squandered in unsavory, dilatory, impeding actions

against [his] rights to discovery per trial rules.” Appellant’s Appendix at 30. The

request for change of judge was granted, and Special Judge David N. Riggins

was appointed and assumed jurisdiction on November 12, 2019.

[8] On December 12, 2019, Butler filed a motion for summary judgment, asserting

that he was entitled to judgment as a matter of law on the ineffective assistance

of trial counsel and appellate counsel claims that he raised in his petition for

post-conviction relief. He asserted that the material facts not in dispute

included “the arresting officer’s false probable cause affidavit [] which the

officer illegally utilized to perform a pretextual traffic stop upon Butler.” Id. at

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 4 of 14 37. He designated evidence, including his own two affidavits, the State’s

interrogatory responses, and a “Motion for Judicial Estoppel” that he had filed.

Id. at 44.

[9] On February 21, 2020, the court held a post-conviction hearing, at which Butler

presented the following evidence: (1) portions of the trial transcript, namely

Officer Jones’s testimony and the prosecutor’s rebuttal argument; (2), Officer

Jones’s dash-cam video 1; and (3) testimony of his trial counsel, Adam James. 2

The dash-cam video was played on the 72-inch screen in the courtroom. After

watching the video, the post-conviction court stated, “It’s so blurry its hard for

me to see anything[,]” and it determined that the video was “inconclusive” as to

whether Butler stopped. Transcript at 11. The court read the offered and

admitted trial testimony of Officer Jones, who testified that he watched the

wheels or rims of Butler’s vehicle roll and not come to a complete stop.

[10] James testified that, prior to trial, he deposed Officer Jones and watched the

dash-cam video. James acknowledged that Butler asked him to file a motion to

suppress but that, based on Officer Jones’s deposition testimony and the video,

he thought a motion to suppress would not be successful, and he “didn’t want

to file what [he] thought would be [a] frivolous motion to suppress.” Id. at 26.

1 Butler did not have the video but the prosecutor had a copy at the hearing, agreed for it to be played, and did not object to its admission. 2 Butler had not subpoenaed James for the hearing, but rather than continue the hearing, and with the agreement of the State, the court contacted James, who now was employed as a county prosecutor, and asked him to come to the courtroom to testify. The State did not object to that course of action.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 5 of 14 [11] After receiving testimony and hearing argument, the post-conviction court

addressed Butler’s motion for summary judgment. The court explained,

“Summary judgment is not necessarily an appropriate motion for post-

conviction relief[,]” and, further, “[s]ummary judgment is like a shortcut so you

don’t have to have a hearing. . . . We’re having the hearing. So, I’m gonna

deny your motion for summary judgement because it’s not necessary.” Id. at

32. The court took Butler’s petition for post-conviction relief under advisement

and issued an order later that day denying relief.

[12] It found that James’s decision to not file a motion to suppress was reasonable,

stating, in pertinent part:

A view of the [] video is inconclusive due to the distance and blurriness of the video. Had the Motion to Suppress been filed in this court, this court would have denied it. The discrepancy between Butler and Jones [sic] version of events is not appropriate as a matter of law for suppression but instead was a matter of credibility for the jury to consider. Moreover, Butler was wanted on a warrant at the time of the stop. . . . This court does not believe the law allows suppression of identity, even if the stop was unlawful. Therefore, once Butler’s identity was established, the warrant was properly executed and items discovered would have been subject to lawful search incident to arrest and/or inventory.

Appellant’s Appendix at 13. The post-conviction court determined that James did

not provide ineffective assistance by not filing a motion to suppress. With

regard to Butler’s claim that his trial counsel was ineffective for failure to object

to a claimed violation of a motion in limine, the court found that Butler failed

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 6 of 14 to present any evidence on the issue and failed to make a cogent argument, and,

accordingly, “fails in his burden.” Id.

[13] Similarly, concerning Butler’s post-conviction claim that his appellate counsel

was ineffective, the court found that “again, [Butler] presented no evidence or

argument in support[,]” but noted that Butler’s testimony at the hearing “hinted

that after speaking with his appellate counsel he understood why she didn’t

raise the issue of ineffective assistance of [trial] counsel, instead leaving it to be

raised in a PCR petition.” Id. The post-conviction court determined that Butler

“has failed to meet his burden on this claim too.” Id. The court denied the

petition for post-conviction relief, 3 and Butler now appeals.

Discussion & Decision [14] In order to prevail on a petition for post-conviction relief, a petitioner must

establish his claims by a preponderance of the evidence. Ind. Post-Conviction

Rule 1(5); Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009). The post-

conviction court is the sole judge of the weight of the evidence and the

credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

[15] When appealing from the denial of a petition for post-conviction relief, a

petitioner must convince this court that the evidence, taken as a whole, “leads

3 In its order, the court recognized the “passionate plea” that Butler had made about his situation in prison and his efforts at reform, and it congratulated Butler on his progress, suggesting that “such progress is best noted and appreciated in a Petition to Modify Sentence” and “it really has no place for consideration in a Petition for Post-Conviction relief.” Appellant’s Appendix at 13.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 7 of 14 unerringly and unmistakably to a decision opposite that reached by the post-

conviction court.” Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). “It is only

where the evidence is without conflict and leads to but one conclusion, and the

post-conviction court has reached the opposite conclusion, that its decision will

be disturbed as contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct.

App. 2004), trans. denied.

I. Motion for Summary Judgment [16] Butler challenges the post-conviction court’s denial of his T.R. 56 motion for

summary judgment, arguing that the State “failed to present any evidence to

rebut Butler’s designated evidence establishing that he did not run a stop

sign[.]” Appellant’s Brief at 22 (internal quotation marks omitted).

[17] Although post-conviction proceedings are civil, see Ind. Post-Conviction Rule

1(1)(5), the Indiana Supreme Court “established the special procedures set out

in the Indiana Post-Conviction Rules to facilitate review of criminal convictions

and sentences[,]” and the remedy provided under P-C.R. 1 “takes the place of

all other common law, statutory, or other remedies heretofore available for

challenging the validity of the conviction or sentence and shall be used

exclusively in place of them.” P-C.R. 1(1)(b); Van Meter v. State, 650 N.E.2d

1138, 1138 (Ind. 1995). Our Indiana Supreme Court has explained that

Indiana’s Trial Rules “generally only govern procedure and practice in civil

cases” and that the Court has considered their applicability in post-conviction

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 8 of 14 proceedings where the Post-Conviction Rules “are silent.” Corcoran v. State, 845

N.E.2d 1019, 1021 (Ind. 2006).

[18] The post-conviction rules expressly provide for summary disposition. P-C.R.

1(1)(4)(g) states:

The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

The State argues that “[b]ecause the Post-Conviction Rules are not silent about

summary disposition, and in fact conflict with Trial Rule 56(C), Trial Rule

56(C) does not apply in post-conviction proceedings,” and, therefore, the post-

conviction court properly denied Butler’s summary judgment motion.

Appellant’s Brief at 15.

[19] Regardless of whether Butler was allowed to file for summary disposition under

T.R. 56, his claim fails. That is, under either rule – P-C.R. 1(1)(4)(g) or T.R. 56

– Butler has failed to show that that there was no genuine issue of material fact

and that he was entitled to judgment as a matter of law. The main fact that he

represented in his motion as being undisputed – that he did stop at the stop sign

– was expressly disputed in the probable cause affidavit and by Officer Jones in

his deposition, where he stated that he observed Butler fail to completely stop.

The State’s responses to interrogatories, which Butler designated in support of

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 9 of 14 his motion, were consistent with that position. Accordingly, summary

disposition was not warranted. See State v. Gonzalez-Vazquez, 984 N.E.2d 704,

709 (Ind. Ct. App. 2013) (observing that, where post-conviction petitioner

sought summary judgment on his ineffectiveness claim, “it would be an

extremely rare occasion upon which a petitioner would be able to show an

absence of an issue of material fact and further show his entitlement to

judgment as a matter of law without a hearing and the presentation of

evidence”), trans. denied. The post-conviction court did not err when it denied

Butler’s motion for summary judgment.

II. Ineffective Assistance of Trial Counsel [20] Butler’s primary argument on appeal is that the traffic stop was pretextual and

illegal and that his counsel was ineffective for not filing a motion to suppress

the seized evidence.4 Ineffective assistance of counsel claims are governed by

the two part test established by Strickland v. Washington, 466 U.S. 668 (1984).

According to this test, [Butler] must first establish that his trial counsel’s performance was deficient. To demonstrate deficient performance, [Butler] must show that his trial counsel’s representation fell below an objective standard of reasonableness and that the errors were so serious that they resulted in a denial of [Butler’s] Sixth Amendment right to counsel. Second, [Butler] must demonstrate that the deficient performance prejudiced his

4 Although Butler raised in his petition the argument that trial counsel was also ineffective for failing to object to certain testimony, he did not address that claim at the hearing, and the post-conviction court found that he waived it. Butler does not challenge that determination on appeal, and any claim regarding a failure to object is waived.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 10 of 14 defense. In order to establish prejudice, [Butler] must show that there is a reasonable probability that, but for his trial counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Moore v. State, 872 N.E.2d 617, 620 (Ind. Ct. App. 2007) (quoting Glotzbach v.

State, 783 N.E.2d 1221, 1224 (Ind. Ct. App. 2003)), trans. denied.

[21] Counsel is afforded considerable discretion in choosing strategy and tactics, and

a strong presumption arises that counsel rendered adequate assistance. Oberst v.

State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010), trans. denied. We will not

lightly speculate as to what may or may not have been an advantageous trial

strategy, as counsel should be given deference in choosing a trial strategy that,

at the time and under the circumstances, seems best. Perry v. State, 904 N.E.2d

302, 308 (Ind. Ct. App. 2009), trans. denied. Isolated omissions or errors, poor

strategy, or bad tactics do not necessarily render representation ineffective.

McCullough v. State, 973 N.E.2d 62, 74 (Ind. Ct. App. 2012), trans. denied.

[22] Butler contends that his trial counsel was ineffective for not filing a motion to

suppress. Appellant’s Brief at 14. The decision of whether to file a particular

motion is generally a matter of trial strategy, and, absent an express showing to

the contrary, the failure to file a motion does not indicate ineffective assistance

of counsel. Glotzbach, 783 N.E.2d at 1224. Specifically, we have held that

“‘[t]o 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

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 11 of 14 that such motions would have been successful.’” Moore, 872 N.E.2d at 621

(quoting Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct. App. 2002), on reh’g, 774

N.E.2d 116, trans. denied).

[23] Here, at the post-conviction hearing, James acknowledged that he and Butler

had discussed the possibility of filing a motion to suppress, but James explained

that, after deposing Officer Jones and watching the video that was blurry and

essentially inconclusive, he decided not to file “what [he] thought would be [a]

frivolous motion to suppress.” Transcript at 26. The partial trial transcript

admitted at the post-conviction hearing reflected that James posed questions to

Officer Jones on cross-examination that inquired where exactly Officer Jones

was located at the time that Butler’s car arrived at the stop sign and appeared to

be calculated to raise doubts on the officer’s assertion that he saw the rims of

Butler’s vehicle not come to a complete stop. The record also suggests that

James’s closing argument included that Butler stopped at the stop sign and that

the officer could not see it. 5 On this record, Butler has failed to carry his burden

of showing that James’s decision – to not file a motion to suppress – was not a

matter of trial strategy. See Glotzbach, 783 N.E.2d at 1225 (trial counsel’s

decision not to file a motion to suppress photo array was matter of trial strategy

5 James’s closing argument is not in the record before us, but the prosecutor’s rebuttal argument is, having been offered by Butler at the post-conviction hearing and admitted without objection, and such rebuttal argument indicates that the State responded to suppression-type arguments that had been made by Butler’s counsel.

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 12 of 14 and not ineffective assistance where counsel’s cross-examination at trial asked

questions aiming to raise doubt about the legitimacy of the photo array).

[24] Moreover, the post-conviction court (a special judge who assumed jurisdiction

after Butler’s motion for change of venue from the judge) stated that “[h]ad the

Motion to Suppress been filed in this court, this court would have denied it”

because the matter hinged on witness credibility, i.e. Butler’s version versus

Officer Jones’s version. Appellant’s Appendix at 13. In sum, the record before us

does not show that a motion to suppress would have been granted. See Oberst,

935 N.E.2d at 1257 (trial counsel was not ineffective for not filing a motion to

suppress a confession, where defendant’s claim that his confession was

involuntary due to intoxication was in conflict with the detective’s version,

which was that Oberst did not appear to be intoxicated, and counsel was

present at the confession and observed defendant and his ability to answer

questions).

[25] For these reasons, we conclude that Butler has failed to establish by a

preponderance of the evidence that his trial counsel was ineffective for not filing

a motion to suppress. 6 We therefore affirm the denial of Butler’s petition for

post-conviction relief.

6 Butler raised a claim of ineffective assistance of appellate counsel in his petition for post-conviction relief, which the post-conviction court determined had been waived. Butler does not expressly challenge this determination on appeal and only generally offers the claim that “trial and appellate counsel were both ineffective for failing to argue suppression in court or on appeal.” Appellant’s Brief at 21. We find that he has

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 13 of 14 [26] Judgment affirmed.

Riley, J. and May, J., concur.

failed to make a cogent argument or cite to authority and has waived any claim that his appellate counsel was ineffective. Ind. Appellate Rule 46(A)(8).

Court of Appeals of Indiana | Memorandum Decision 20A-PC-658| December 9, 2020 Page 14 of 14