MEMORANDUM DECISION Apr 13 2015, 6:23 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stephen T. Owens Gregory F. Zoeller Public Defender of Indiana Attorney General of Indiana
J. Michael Sauer Ellen H. Meilaender Deputy Public Defender Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Myron B. James, April 13, 2015
Appellant-Petitioner, Court of Appeals Case No. 79A02-1410-PC-716 v. Appeal from the Tippecanoe Superior Court The Honorable Randy J. Williams, State of Indiana, Judge Appellee-Respondent Cause No. 79D01-1109-PC-13
Bradford, Judge.
Case Summary [1] In October of 2007, officers with the Lafayette Police Department learned that
Appellant-Petitioner Myron B. James, Servan Allen, and Byron Simmons were
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 1 of 13 selling cocaine out of a Lafayette apartment. On October 16, 2007, James, with
the aid of his then-girlfriend, Sparkle Bennett, sold .035 grams of cocaine to an
undercover Lafayette officer. James, Allen, and Simmons were subsequently
found to be in possession of 53.42 grams of cocaine. Appellee-Respondent the
State of Indiana (the “State”) subsequently charged James with numerous
crimes, including Class B felony conspiracy to commit dealing in cocaine, Class
A felony dealing in cocaine, Class A felony possession of cocaine, and Class D
felony obstruction of justice. Following a jury trial, James was found guilty of
Class B felony conspiracy to commit dealing in cocaine and not guilty of the
remaining charges. The trial court sentenced James to a term of forty-five years
of imprisonment.
[2] James subsequently challenged his sentence, which was affirmed on direct
appeal. James then filed a petition seeking post-conviction relief (“PCR”).
Following an evidentiary hearing on James’s PCR petition, the post-conviction
court denied the petition. We affirm.
Facts and Procedural History [3] In October of 2007, Bennett lived on Green Acres Drive in the Bridgewater
Apartments in Lafayette. Bennett had been involved in a romantic relationship
with James for several years. Bennett knew Allen and Simmons through
James. James, Allen, and Simmons sold crack cocaine out of Bennett’s
apartment. They would sometimes use Bennett to deliver the drugs in question.
James, Allen, and Simmons each had a “work phone” that they used to set up
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 2 of 13 their cocaine sales. Trial Tr. p. 42. The number for this phone was “765-337-
2604.” Trial Tr. p. 42.
[4] At some point during October of 2007, the Lafayette Police Department was
provided with information about, and a phone number for, a cocaine dealer
operating out of the Bridgewater Apartments. The phone number was “765-
337-2604.” Trial Tr. p. 121. Acting in an undercover capacity, on October 16,
2007, Lafayette Police Officer Jason Walters called the phone number provided
to police and arranged to purchase cocaine. Officer Walters spoke with both
James and Allen. James asked Officer Walters how he knew about him, asked
for Officer Walter’s location and told him to call back when he was closer,
asked him “how much you got,” and asked him the color of his vehicle. Trial
Tr. p. 61; State’s Ex. 4.
[5] After receiving the phone call from Officer Walters, James handed Bennett
some cocaine and said “Here, baby, take this outside for me.” Trial Tr. p. 47.
James, Allen, and Simmons all remained inside Bennett’s apartment.
Approximately two or three minutes after James asked Officer Walters to
describe his vehicle, Bennett came outside, spat cocaine out of her mouth, and
handed it to Officer Walters in exchange for money. Bennett was then placed
under arrest. Subsequent testing confirmed that Bennett delivered .035 grams
of cocaine to Officer Walters.
[6] Shortly after Bennett’s arrest, police set up a perimeter around Bennett’s
apartment building so that no one else could enter or exit Bennett’s apartment.
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 3 of 13 After the perimeter was set up, Allen opened the back door to the apartment.
Officer Robert Petillo instructed Allen to “Stop. Police.” Trial Tr. p. 226.
Allen disregarded Officer Petillo’s instruction and slammed the door shut.
Another individual was observed looking out of a window. Officer Petillo also
observed multiple people running around inside the apartment.
[7] After receiving Bennett’s consent to search her apartment, officers knocked and
announced, but received no answer. When officers entered the apartment, they
found James, Allen, and Simmons in the living room. Officers found that the
toilet in the upstairs bathroom was clogged and there was water on the floor.
After removing the toilet, the officers recovered 53.42 grams of cocaine.
Simmons’s pants were wet in the front and he gave the police a false name and
date of birth. The cell phone registered to the 735-337-2604 number was found
in the pocket of a coat hanging in the closet. The battery for the phone was
found under the couch. Allen and Simmons were found with $2980 and $1020
on their persons, respectively. Police also found a pair of “soaking wet” jeans
on the bed in the bedroom. Trial Tr. p. 148.
[8] Our opinion in James’s prior direct appeal, which was handed down on April
26, 2011, instructs us to the procedural history of James’s case:
In October 2007, the State charged James with conspiracy to commit dealing in cocaine as a Class B felony, dealing in cocaine as a Class A felony, possession of cocaine as a Class A felony, and obstruction of justice as a Class D felony. James was informed of his trial date in person and ordered to appear. His attorney sent him a letter confirming the trial date and later spoke with him before trial to verify the date. James failed to appear the first day of his trial, and even after
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 4 of 13 communicating with his attorney, failed to appear the remainder of the trial.
James v. State, 79A02-1007-CR-830 *1 (Ind. Ct. App. April 26, 2011). At the
conclusion of trial,
[a] jury found James guilty in absentia of conspiracy to commit dealing in cocaine as a Class B felony and not guilty of the remaining charges. James failed to appear for his pre-sentence interview and was sentenced in absentia to a term of forty-five years of imprisonment.
Id.
[9] On September 21, 2011, James filed a pro se petition for PCR. On January 16,
2014, James, by counsel, filed an amended PCR petition, which alleged that
James had received ineffective assistance from his trial counsel. The post-
conviction court conducted an evidentiary hearing on James’s amended PCR
petition on April 25, 2014. During this hearing, James, by counsel, presented
argument, evidence, and witness testimony in support of his ineffective
assistance claim. On July 15, 2014, the post-conviction court issued an order
denying James’s request for PCR. This appeal follows.
Discussion and Decision [10] Post-conviction procedures do not afford the petitioner with a super-appeal.
Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a
narrow remedy for subsequent collateral challenges to convictions, challenges
which must be based on grounds enumerated in the post-conviction rules. Id.
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 5 of 13 A petitioner who has been denied post-conviction relief appeals from a negative
judgment and as a result, faces a rigorous standard of review on appeal. Dewitt
v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942
(Ind. Ct. App. 1999), trans. denied.
[11] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,
745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his
claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,
a petitioner must convince this court that the evidence, taken as a whole, “leads
unmistakably to a conclusion opposite that reached by the post-conviction
court.” Stevens, 770 N.E.2d at 745. “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.
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).
We therefore accept the post-conviction court’s findings of fact unless they are
clearly erroneous but give no deference to its conclusions of law. Id.
Whether the Post-Conviction Court Erred in Determining that James Did Not Receive Ineffective Assistance of Trial Counsel [12] The right to effective counsel is rooted in the Sixth Amendment to the United
States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 6 of 13 Sixth Amendment recognizes the right to the assistance of counsel because it
envisions counsel’s playing a role that is critical to the ability of the adversarial
system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.
668, 685 (1984)). “The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper function of the
adversarial process that the trial court cannot be relied on as having produced a
just result.” Strickland, 466 U.S. at 686.
[13] A successful claim for ineffective assistance of counsel must satisfy two
components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first
prong, the petitioner must establish that counsel’s performance was deficient by
demonstrating that counsel’s representation “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. We recognize that
even the finest, most experienced criminal defense attorneys may not agree on
the ideal strategy or most effective way to represent a client, and therefore,
under this prong, we will assume that counsel performed adequately and defer
to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585
(Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of
bad judgment do not necessarily render representation ineffective. Id.
[14] Under the second prong, the petitioner must show that the deficient
performance resulted in prejudice. Reed, 866 N.E.2d at 769. Again, a petitioner
may show prejudice by demonstrating that there is “a reasonable probability
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 7 of 13 (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.
[15] A petitioner’s failure to satisfy either prong will cause the ineffective assistance
of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,
“the two parts of the Strickland test are separate inquires, a claim may be
disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.
2006) (citing Williams, 706 N.E.2d at 154). Further, courts often times prefer to
address the prejudice element first since it is not the object of an ineffectiveness
claim to grade counsel’s performance. Cranor v. State, 699 N.E.2d 284, 286
(Ind. Ct. App. 1998).
[16] James challenges the post-conviction court’s determination that he did not
receive ineffective assistance of trial counsel. In raising this challenge, James
claims that his trial counsel provided ineffective assistance by failing to object to
what James claims was irrelevant and prejudicial evidence. For its part, the
State argued that the post-conviction court properly denied James’s PCR
petition because he failed to prove that he was prejudiced by his trial counsel’s
allegedly deficient performance. We agree with the State.
[17] James argues that his trial counsel should have objected to the admission of
State’s Exhibit 15, a booking sheet from the Tippecanoe County Sheriff’s
Department. The State admitted this exhibit for the purpose of identifying
James, who failed to appear at trial. Initially we note that James’s trial counsel
did object to the admission of certain information that was included in the
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 8 of 13 “Cautions” section which indicated that James was known to carry a concealed
firearm and was a gang member. State’s Ex. 15. After James’s counsel levied
this objection, the State agreed to block out this information by placing white
corrective tape over the challenged information. James asserts on appeal,
however, that the act of placing white corrective tape over the challenged
information was insufficient to protect him from the prejudicial nature of the
information because one could still read the information if the exhibit was held
up to the light. James also asserts that his trial counsel should have objected to
the admission of the exhibit into evidence because it contains other irrelevant
and prejudicial information. Specifically, James points to the “Comments”
section which he claims suggests that he has faced prior criminal charges and
the “Alias” section which indicates that James has known aliases. State’s Ex.
15. James’s trial counsel did not object to the inclusion of either of the above-
mentioned items.
[18] Upon review, we observe that while State’s Exhibit 15 may contain some
irrelevant and potentially prejudicial information, James has failed to prove that
there is a reasonable probability that, but for his trial counsel’s allegedly
deficient performance, the result of the proceedings would have been different.
During trial, the State provided overwhelming evidence of James’s guilt.
Bennett testified that James, Allen, and Simmons sold crack cocaine out of her
apartment, and that James would sometimes use her to deliver the drugs in
question. Bennett was familiar with James, as she had been in a romantic
relationship with James for several years. Bennett also testified that James,
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 9 of 13 Allen, and Simmons had a “work phone” that they used to set up their cocaine
sales. Trial Tr. p. 42. The number of this phone matched the number provided
to Officer Walters.
[19] Acting in an undercover capacity, Officer Walters called the number and
arranged to purchase cocaine. In doing so, Officer Walters spoke to both James
and Allen. James asked Officer Walters how he knew about him, asked for
Officer Walter’s location and told him to call back when he was closer, asked
him “how much you got,” and asked him the color of his vehicle. Trial Tr. p.
61; State’s Ex. 4. Bennett identified James’s voice on a recording of these
phone calls, a copy and transcript of which was admitted into evidence.
Bennett further indicated that after receiving the phone call from Officer
Walters, James handed her some cocaine and said “Here, baby, take this
outside for me.” Trial Tr. p. 47. Bennett then went outside and delivered .035
grams of cocaine to Officer Walters in exchange for money.
[20] James remained in Bennett’s apartment while Bennett went outside to complete
the sale. After receiving Bennett’s consent to search the apartment, officers
entered and found James, Allen, and Simmons in the living room. Officers
observed that an upstairs toilet was clogged. After removing the toilet, officers
recovered 53.42 grams of cocaine. Officers also recovered the cellular phone
which was registered to the number that Officer Walters had called to arrange
his purchase of cocaine. This evidence overwhelmingly supports the jury’s
conclusion that James committed Class B felony conspiracy to commit dealing
in cocaine.
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 10 of 13 [21] Moreover, the fact that the jury found James not guilty of three of the charged
offenses suggests that James was not prejudiced by his counsel’s allegedly
deficient performance. In Wooden v. State, 657 N.E.2d 109 (Ind. 1995),
Wooden argued that his trial counsel provided ineffective assistance by failing
to object to the State’s motion to consolidate two “separate and distinct cases
for one trial” because after hearing from the two alleged victims, the jury
“would undoubtedly feel that [Wooden] was necessarily guilty of one of the
crimes.” 657 N.E.2d at 112 (internal record quotation omitted). The Indiana
Supreme Court found that Wooden failed to prove that he was prejudiced by
the allegedly ineffective assistance provided by his trial counsel. Id. In finding
that Wooden had failed to prove that he was prejudiced by his counsel’s
allegedly ineffective assistance, the Indiana Supreme Court noted that the
record demonstrated that the jury was able to evaluate the evidence and render
an appropriate verdict as to both cases, observing that the jury acquitted
Wooden on two of the three charges. Id.
[22] In Cranor, Cranor argued that his trial counsel provided ineffective assistance by
repeatedly failing to object to inadmissible evidence. 699 N.E.2d at 287.
Specifically, Cranor argued that, as a result of counsel’s allegedly ineffective
assistance, “the jury was exposed to improper character evidence or irrelevant,
prejudicial testimony solely calculated to inflame the jury, thereby creating a
risk that [he] would be convicted on jury passion alone.” Id. In concluding that
Cranor failed to prove that he was prejudiced by counsel’s allegedly ineffective
assistance, we noted that the jury acquitted Cranor of one of the two charged
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 11 of 13 offenses. Id. As such, even “[a]ssumming arguendo that the jury was exposed to
inadmissible, inflammatory evidence due to Cranor’s trial counsel’s failure to
lodge objections, it appears this evidence did not influence the jury to the extent
Cranor fears since he was acquitted of one of the two charges: a result
inconsistent with an impassioned jury.” Id.
[23] In Rentas v. State, 519 N.E.2d 162 (Ind. Ct. App. 1988), the Indiana Court of
Appeals concluded that Rentas had failed to prove that he was prejudiced by
the allegedly ineffective assistance provided by his trial counsel. 519 N.E.2d at
165. Upon review, we noted that “Rentas was charged with two counts of
dealing in a narcotic drug—yet, the jury acquitted him of the first count.” Id.
We concluded that “[i]f trial counsel’s performance did not prejudice the jury’s
verdict as to count I, it could not have prejudiced the jury’s verdict as to count
II.” Id.
[24] In the instant matter, James was charged with four criminal offenses. At the
conclusion of the presentation of the evidence, the jury considered the evidence
and acquitted James of three of the four charged offenses. We agree with the
previous conclusions of both this court and the Indiana Supreme Court, that
such an outcome is inconsistent with a claim that the allegedly irrelevant and
potentially prejudicial evidence impacted the jury in a manner which affected
the jury’s ability to evaluate the evidence and render an appropriate verdict.1
1 We disagree with James’s assertion that the fact that the jury found him not guilty of three of the four charged offenses indicates that the jury doubted Bennett’s credibility.
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 12 of 13 See Wooden, 657 N.E.2d at 112; Cranor, 699 N.E.2d at 287; Rentas, 519 N.E.2d
at 165.
[25] Again, a successful claim for ineffective assistance of counsel requires a
petitioner to prove both prejudice and deficient performance. In light of the
overwhelming evidence of James’s guilt coupled with the fact that the record
indicates that the jury was able to evaluate the evidence and render an
appropriate verdict, we conclude that James has failed to prove that he was
prejudiced by his trial counsel’s allegedly deficient performance. James,
therefore, failed to meet his burden of proving his claim of ineffective assistance
of counsel. See Reed, 866 N.E.2d at 769 (providing that a successful claim for
ineffective assistance of counsel must satisfy two components, i.e., deficient
performance and prejudice); Williams, 706 N.E.2d at 154 (providing that a
petitioner’s failure to satisfy either prong will cause the ineffective assistance of
counsel claim to fail). As such, we need not consider whether trial counsel
provided deficient performance.
[26] The judgment of the post-conviction court is affirmed.
Vaidik, C.J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1410-PC-716 | April 13, 2015 Page 13 of 13