MEMORANDUM DECISION Aug 28 2015, 8:52 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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brendan K. Lahey Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana
J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Phil L. Honer, August 28, 2015
Appellant-Petitioner, Court of Appeals Case No. 71A03-1503-PC-103 v. Appeal from the St. Joseph Superior Court.
State of Indiana, The Honorable Jerome Frese, Judge. Appellee-Respondent. Cause No. 71D03-0912-PC-58
Darden, Senior Judge
Statement of the Case [1] Phil L. Honer appeals from the trial court’s order denying his petition for post-
conviction relief without holding a hearing. We affirm in part, reverse in part
and remand.
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 1 of 16 Issues [2] Honer presents the following issue on appeal, which we restate as: whether his
petition for post-conviction relief conclusively showed that he is entitled to no
relief.
[3] The State cross-appeals, arguing that we should dismiss Honer’s appeal because
Honer’s notice of appeal was not timely filed, thereby resulting in the forfeiture
of his right to appeal, and there are no extraordinarily compelling reasons why
Honer’s forfeited right should be restored.
Facts and Procedural History [4] The facts related to Honer’s underlying conviction were set forth in our prior
memorandum decision as follows:
On September 6, 2006, around midnight, Officers Aaron Brick (Officer Brick) and Randall Goering (Officer Goering) of the South Bend Police Department, were traveling westbound on Western Street in South Bend, Indiana. As the Officers approached the intersection of Western and Walnut Streets, they pulled up behind an automobile stopped at a red light. While Officers Goering and Brick waited for the traffic signal to change, they observed the driver of the car, later identified as Honer, repeatedly looking back at them. When the light turned green, Honer tossed several clear plastic bags from his vehicle. The plastic bags landed to the left of the median separating the street. The Officers initiated a traffic stop. Officer Goering discovered that Honer was the only occupant of the vehicle and began to question him. As Officer Brick retrieved the discarded plastic bags, he observed no other trash in the immediate area. A field test concluded that the discarded plastic bags contained cocaine
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 2 of 16 and marijuana. Both parties stipulated that the drugs found were 12.86 grams of cocaine and marijuana. Officer Brick determined that the distance between where the cocaine and marijuana were recovered and Pulaski Park, a public park, was 111 feet. Honer v. State, 71A05-0806-CR-364, slip op. at 1 (Ind. Ct. App. Nov. 5, 2008),
trans. denied (2009).
1 [5] The State charged Honer with one count of possession of marijuana as a Class
A misdemeanor; one count of possession of three or more grams of cocaine 2 within one thousand feet of a public park as a Class A felony; and, one count 3 of possession of an automatic opening knife as a Class B misdemeanor. After
his jury trial, Honer was found guilty as charged and received an aggregate
sentence of thirty years executed.
[6] On his direct appeal, Honer challenged the sufficiency of the evidence. More
specifically, he argued that the evidence was insufficient to overcome his
defense that children were not present during the commission of the crime. See
Ind. Code § 35-48-4-16(b) (2001) (defense that person was briefly within 1,000
feet of public park and no person under eighteen years old at least three years
junior to person was present there at time of offense). The majority of a panel
1 Ind. Code § 35-48-4-11 (1983). 2 Ind. Code § 35-48-4-6(a) (2006); Ind. Code § 35-38-4-6(b)(3)(B)(ii) (2006). 3 Ind. Code § 35-47-5-2 (2000).
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 3 of 16 of this court affirmed Honer’s convictions. Honer v. State, 71A05-0806-CR-364
(Ind. Ct. App. Nov. 5, 2008), trans. denied (2009).
[7] Honer filed a petition for post-conviction relief on December 23, 2009, in which
he raised five claims pertaining to ineffective assistance of counsel. Those
claims are as follows: (1) trial counsel failed to challenge the method used to
test the cocaine; (2) trial counsel failed to object to the testimony of the police
officers about the authenticity of cocaine, thereby violating Honer’s right to
confrontation; (3) trial counsel failed to hold the State to its burden of proving
beyond a reasonable doubt that he was within 1,000 feet of a public park by
personally measuring the distance; (4) trial counsel failed to present during trial
or closing argument the statutory defense that children were not present during
the commission of the crime; and (5) trial counsel failed to present evidence on
Honer’s behalf to allow the jury to determine if children were present during the
commission of the crime. Honer also filed an affidavit of indigency and
requested the assistance of the State Public Defender.
[8] The State filed its response to Honer’s petition on January 22, 2010. In that
response, the State asserted the affirmative defenses of waiver, res judicata, and
laches. The State also denied that Honer was entitled to post-conviction relief
on any of his claims.
[9] On May 5, 2010, the trial court appointed the State Public Defender’s Office to
represent Honer. The State Public Defender’s Office filed an appearance by
counsel of May 24, 2010, in which counsel expressed a present inability to
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 4 of 16 investigate Honer’s claims. On May 25, 2010, the trial court granted the
motion to stay all proceedings until the State Public Defender notified the trial
court of its ability to proceed with Honer’s representation.
[10] On January 10, 2012, substitute counsel with the State Public Defender’s Office
filed a notice of substitution as counsel of record for Honer with the trial court.
On February 16, 2012, counsel filed a notice of withdrawal of appearance and a
certification with the trial court in which counsel noted that he had investigated
Honer’s claims, expressed his opinion of those claims to Honer, and that Honer
wished to proceed with his petition nonetheless.
[11] On March 7, 2012, the trial court entered an order in response to the
withdrawal of the State Public Defender. In the order, the trial court
acknowledged the procedural history of Honer’s petition, granted the State
Public Defender’s request to withdraw, and gave Honer forty-five days in which
to notify the trial court whether he was hiring private counsel or proceeding pro
se, and if he wished to amend his petition. The trial court also declined to
appoint successor counsel for Honer.
[12] On February 19, 2015, the trial court entered its findings and order denying
Honer’s petition for post-conviction relief. In the order, the trial court noted
that it had the option of dismissing the petition pursuant to Indiana Trial Rule
41(E) for Honer’s failure to comply with the trial court’s March 7, 2012 order.
However, instead of issuing an order dismissing Honer’s petition for failure to
prosecute, the trial court chose to enter findings on the merits of Honer’s
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 5 of 16 petition, noting in support of that decision that the State had submitted a
response to Honer’s petition. Honer now appeals.
Discussion and Decision I. The State’s Cross-Appeal [13] The State argues that we should dismiss Honer’s appeal because Honer’s notice
of appeal was not timely filed, thereby resulting in the forfeiture of his right to
appeal. The State also claimed that there are no extraordinarily compelling
reasons why Honer’s forfeited right to appeal should be restored. We disagree.
[14] The Supreme Court, in In Re Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014),
clarified that “although a party forfeits its right to appeal based on an untimely
filing of the Notice of Appeal, this untimely filing is not a jurisdictional defect
depriving the appellate courts of authority to entertain the appeal.” Rather,
when a notice of appeal is untimely filed such that the right to appeal has been
forfeited, “the question is whether there are extraordinarily compelling reasons
why this forfeited right should be restored.” Id.
[15] The State claims that there are no extraordinarily compelling reasons why
Honer’s forfeited right to appeal should be restored, in part because Honer has
already had a direct appeal from his convictions. Before that question can be
answered, however, we must determine if Honer’s notice of appeal was in fact
untimely.
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 6 of 16 [16] The trial court entered its order denying Honer’s petition for post-conviction
relief on Thursday, February 19, 2015, and the chronological case summary
notes the trial court’s order on that date. Honer’s notice of appeal was filed on
Monday, March 23, 2015. Indiana Appellate Rule 9(A)(1) provides that a party
initiates an appeal by filing a notice of appeal within thirty days after the entry
of a final judgment is noted in the chronological case summary. Therefore, the
deadline for filing Honer’s notice of appeal was Saturday, March 21, 2015.
Indiana Appellate Rule 25(B), which explains the computation of time,
provides that the day of the act or event from which a period of time begins to
run is not included in the computation. The rule further provides that the last
day of the period is included in the computation unless it is a non-business day,
which is defined as a Saturday, a Sunday, a legal holiday, or a day the Office of
the Clerk is closed during regular business hours. Ind. Appellate Rule 25(A).
Here, the last day of the period fell on a Saturday, a non-business day. In such
a case, the rule further provides that the period runs until the end of the next
business day. Ind. Appellate Rule 25(B). A business day is defined as all other
days. Ind. Appellate Rule 25(A).
[17] Therefore, Honer’s notice of appeal was timely filed. We need not address the
State’s additional argument concerning the existence of extraordinarily
compelling reasons to restore a forfeited right to appeal, and turn now to the
merits of the Honer’s appeal.
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 7 of 16 II. Entitlement to Post-Conviction Relief [18] Honer contends that the trial court erred by denying his petition for post-
conviction relief on the basis that his petition conclusively showed he is entitled
to no relief.
[19] “The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence.” Campbell v. State, 19
N.E.3d 271, 273-74 (Ind. 2014). “When appealing the denial of post-conviction
relief, the petitioner stands in the position of one appealing from a negative
judgment.” Id. at 274. “To prevail on appeal from the denial of post-conviction
relief, a petitioner must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction
court.” Id. Further, the post-conviction court in this case made findings of fact
and conclusions of law in accordance with Indiana Post-Conviction Rule 1(6).
Id. “Although we do not defer to the post-conviction court’s legal conclusions,
‘[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. (quoting Ben-Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (internal quotation omitted)).
[20] In this case, the trial court denied Honer’s petition for post-conviction relief
without holding a hearing. Additionally, neither party requested summary
disposition. Turning to the Rules of Post-Conviction Relief, we have noted that
there are two subsections under Post-Conviction Rule 1, section 4, that address
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 8 of 16 such situations where the court enters judgment without holding a hearing, and
each subsection leads to a different standard of review on appeal. Allen v. State,
791 N.E.2d 748, 752 (Ind. Ct. App. 2003). Of those two subsections, Post-
Conviction Rule 1, section 4(f) is applicable here, and provides as follows:
If the State Public Defender has filed an appearance, the State Public Defender shall have sixty (60) days to respond to the State’s answer to the petition filed pursuant to Rule PC 1(4)(a). If the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the petition without further proceedings. [21] Honer frames his argument in terms of whether there is a genuine issue of
material fact precluding denial of his petition as a matter of law, invoking a
standard of review more appropriate under Post-Conviction Rule 1, section
4(g), where either party has moved for summary disposition. However, we will
review the claim under subsection 4(f).
[22] “[W]hen a court disposes of a petition under subsection f, we essentially review
the lower court’s decision as we would a motion for judgment on the
pleadings.” Allen, 791 N.E.2d at 752. A court errs in disposing of the petition
without a hearing unless the pleadings conclusively show that the petitioner is
entitled to no relief as to his claims. Id. at 752-53. If a petition alleges only
errors of law, then the court may make the determination without a hearing
whether the petitioner is entitled to relief on those questions of law. Id. at 753. If,
on the other hand, the facts pleaded raise an issue of possible merit, then the
petition should not be disposed of under section 4(f). Id. Such is the case even if
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 9 of 16 the petitioner has only a remote chance of establishing his claim in such a hearing.
Id.
[23] The first two of Honer’s claims involve challenges concerning the cocaine
evidence. He argued that counsel was ineffective for failing to challenge the
method the officers used to test the cocaine and by failing to object to the
officers’ testimony about the authenticity of the cocaine. The State responded
by noting that Honer and the State entered into a stipulation agreement that the
substances found were cocaine and marijuana. Prior to trial, a laboratory
technician had already verified that the substances were cocaine and marijuana.
The technician did not testify at trial, but the State could have called the
technician as a witness, except for the stipulation agreement between the
parties.
[24] Also, the field test conducted by the officers indicated that the substances were
cocaine and marijuana. We have held that the opinion testimony of someone
sufficiently experienced with a drug may establish its identity, as may other
evidence. Boggs v. State, 928 N.E.2d 855, 865 (Ind. Ct. App. 2010), trans. denied.
Additionally, stipulations are looked upon with favor as a method by which
litigation may be simplified and expedited. Corbin v. State, 713 N.E.2d 906, 908
(Ind. Ct. App. 1999), trans. denied.
[25] Honer’s counsel’s decision to stipulate to the identification of the substances
involves a matter of trial strategy. Trial counsel is given significant deference in
the choice of a trial strategy, which at the time and under the circumstances he
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 10 of 16 deems is best. Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct. App. 2011). On
review, we will not second-guess trial counsel’s choice of trial tactics. Id.
Moreover, trial strategy is not subject to attack via an ineffective assistance of
counsel claim unless the trial strategy is so deficient or unreasonable that it falls
outside an objective standard of reasonableness. Id.
[26] There is nothing improper with stipulating to expected testimony. Corbin, 713
N.E.2d at 908. The pleadings conclusively show that Honer is entitled to no
relief as to his first two claims, and the facts do not raise an issue of possible
merit.
[27] Honer also argued that trial counsel was ineffective by failing to personally
measure the distance between the location of the traffic stop and Pulaski Park to
verify whether he possessed cocaine within 1,000 feet of the park. He also
argues that trial counsel was ineffective by failing to challenge the method used
to measure the distance. One of the officers testified at Honer’s trial that the
location of the stop was 111 feet from the park. Based upon the pleadings, the
facts do not raise an issue of possible merit. The testimony at trial established
that Honer was stopped well within 1,000 feet of the park. Under the
circumstances herein, trial counsel’s decision not to personally measure the
distance or challenge the method used to measure the distance, was reasonable
trial strategy. The court did not err by denying relief as to this claim without
holding an evidentiary hearing.
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 11 of 16 [28] Next, Honer raised two claims regarding whether there were children present
within 1,000 feet of where he committed the offense. He claimed that he
received ineffective assistance of counsel because counsel did not present during
trial or closing argument the statutory defense that children were not present
during the commission of the crime. He also alleged that trial counsel failed to
present evidence on Honer’s behalf to allow the jury to determine if children
were present during the commission of the crime.
[29] In denying relief to Honer, the court found that those claims were barred by res
judicata as they had been resolved in this Court’s decision on Honer’s direct
appeal. We conclude that the trial court erred by failing to have an evidentiary
hearing on these issues. The pleadings do not conclusively show that Honer is
entitled to no relief on the issue of whether he was denied effective assistance of
counsel and the facts raise an issue of possible merit.
[30] In Honer’s direct appeal he argued that the evidence was insufficient to rebut
the affirmative defense that children were not present during the commission of
the crime. Indiana Code section 35-48-4-6(a) provides that a person possessing
cocaine who does not have a valid prescription for the drug commits the offense
of possession of cocaine, a Class D felony offense. The offense is enhanced in
pertinent part to a Class C felony if the defendant engages in such conduct and
the amount of the cocaine weighs three grams or more. Here, the parties
stipulated that the cocaine weighed 12.86 grams. Therefore, we need not
discuss the Class B felony enhancement which applies to the possession of less
than three grams of cocaine within 1,000 feet of a public park. Ind. Code § 35-
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 12 of 16 48-4-6(b)(2)(B)(ii). The offense is further enhanced to a Class A felony in
pertinent part if the defendant engages in such conduct if he possesses more
than three grams of cocaine within 1,000 feet of a public park. Ind. Code § 35-
48-4-6(b)(3)(B)(ii).
[31] However, Indiana Code section § 35-48-4-16(b) provides certain defenses to
qualifying offenses, of which Honer’s conviction of possession of cocaine is
one. Subsection (b) provides in pertinent part that it is a defense to the charge:
(1) if the person was briefly in, on, or within 1,000 feet of a public park; and (2)
that no person under eighteen years of age at least three years junior to the
defendant was in, on, or within 1,000 feet of the public park at the time of the
offense. There is no dispute regarding the brevity of Honer’s presence within
1,000 feet of Pulaski Park. Instead, the dispute centers on the presence of
children in the protected zone at the time of the offense.
[32] In our decision on Honer’s direct appeal we acknowledged cases which set forth
the requirement that the defendant bears an initial burden of proof by a
preponderance of the evidence on any affirmative defense. See, e.g., Adkins v.
State, 887 N.E.2d 934, 938 (Ind. 2008). We went on to hold that “the State’s
evidence is sufficient to rebut Honer’s defense.” Honer v. State, 71A05-0806-CR-
364, slip op. at 2 (Ind. Ct. App. Nov. 5, 2008), trans. denied (2009).
[33] In support of his contention that there was insufficient evidence, Honer pointed
to the lack of testimony during cross-examination that there were children
present within the park or surrounding protected zone at the time of the offense.
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 13 of 16 The majority affirmed the conviction citing to testimony provided by the
officers that they had seen children present at various times other than the time
of the offense in what they characterized as a mixed neighborhood of businesses
and residences. We concluded that the State had sufficiently rebutted Honer’s
affirmative defense.
[34] In his petition for post-conviction relief, however, he alleges that no such
defense was asserted or argued and that no evidence was presented in support
of the affirmative defense. He claims that trial counsel was ineffective for
failing to present evidence in support of that affirmative defense.
[35] The State, in its response to Honer’s petition, presented an argument similar to
the one made by Judge Bailey in his dissenting opinion in Honer’s direct
appeal. The State argued that because the offense happened a little after
midnight, “the park was closed and curfews would have prevented children
from being present. Thus, there appeared to be no question that children were
not present in the park.” Appellant’s App. at 50. The State further argued that
trial counsel’s cross-examination at trial convinced at least one judge on the
panel deciding Honer’s direct appeal that the State had not rebutted the
affirmative defense and thus, trial counsel was not ineffective.
[36] The State has the burden of proving all elements of a charged crime beyond a
reasonable doubt. Moore v. State, 673 N.E.2d 776, 779 (Ind. Ct. App. 1996),
trans. denied. However, the burden of proving an affirmative defense may be
placed on the defendant, provided that proving the defense does not require the
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 14 of 16 defendant to negate an element of the crime. Id. The absence of children
within 1,000 feet of a public park at the time of the offense is not an element of
the crime. Ind. Code § 35-48-4-6(b)(3)(B)(ii). Rather, the affirmative defense
“establishes separate and distinct facts in mitigation of culpability.” See Geljack
v. State, 671 N.E.2d 163, 165 (Ind. Ct. App. 1996) (discussing burdens in
context of emergency defense to operating motor vehicle while license
suspended). The defendant must raise the affirmative defense and bears the
initial burden of proof by a preponderance of the evidence. Wilson v. State, 4
N.E.3d 670, 676 (Ind. Ct. App. 2014). The State bears the burden of negating
beyond a reasonable doubt any defense sufficiently raised by the defendant. Id.
[37] The pleadings show that Honer argues that he received ineffective assistance of
counsel because the defense was not sufficiently raised by counsel, while the
State argues that it was. The consequences to Honer of the failure to present
the evidence of the affirmative defense meant the difference between being
convicted of a Class A felony, if children were found to be present at the time of
the offense, and a Class C felony if children were not found to be present.
Without deciding the issue, we conclude that Honer has raised an issue of
possible merit warranting an evidentiary hearing as opposed to a decision on
the pleadings.
Conclusion [38] Honer’s notice of appeal was timely filed, so we find that his appeal should not
be dismissed as forfeited. Reaching the merits of this appeal, we conclude that
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 15 of 16 the court properly found three of Honer’s claims could be disposed of without a
hearing. However, the pleadings with respect to the last two of Honer’s claims
present facts that raise an issue of possible merit.
[39] Affirmed in part, reversed in part and remanded.
Robb, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1503-PC-103 | August 28, 2015 Page 16 of 16