Tracey A. Hardy v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 29 2018, 8:51 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Tracey A. Hardy Curtis T. Hill, Jr.
Michigan City, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tracey A. Hardy, May 29, 2018
Appellant-Defendant, Court of Appeals Case No.
20A03-1708-PC-1992
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry C.
Appellee-Plaintiff. Shewmaker, Senior Judge
Trial Court Cause No.
20C01-1606-PC-30
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, Tracey Hardy was convicted of two counts of dealing in
cocaine within 1,000 feet of a public park, both Class A felonies, and one count
of dealing in cocaine, a Class B felony. The trial court entered judgment of
conviction and sentenced Hardy to forty-one years in the Indiana Department
of Correction. On direct appeal, we affirmed Hardy’s conviction and sentence.
Hardy v. State, No. 20A03-1506-CR-538 (Ind. Ct. App. Nov. 30, 2015), trans.
denied. Thereafter, Hardy, pro se, filed a petition for post-conviction relief
alleging ineffective assistance of trial counsel which was denied by the post-
conviction court. Hardy now appeals the denial of post-conviction relief,
raising seven issues for our review which we consolidate and restate as whether
the post-conviction court erred in denying Hardy’s motion for post-conviction
relief. Concluding the post-conviction court did not err, we affirm.
Facts and Procedural History
[2] We summarized the facts and procedural history of this case in Hardy’s direct
appeal:
In 2012, the Elkhart County Interdiction and Covert
Enforcement Unit (ICE Unit)—a joint drug task force comprised
of various law enforcement agencies within Elkhart County,
Indiana—began compensating a confidential informant,
Cooperating Source 12009 (CS-12009), to provide information
about individuals in Elkhart County whom the Source believed
to be engaged in dealing drugs. Part of CS-12009’s role as a
confidential informant entailed participating in controlled drug
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purchases under the direction and supervision of his ICE Unit
handlers. At some point, CS-12009 informed the ICE Unit that
Hardy was dealing cocaine.
On the afternoon of August 14, 2013, CS-12009 met with several
ICE Unit officers, including Detective Andrew Whitmyer
(Detective Whitmyer) and Detective Brian Schroth (Detective
Schroth), for the purpose of arranging and carrying out a
controlled drug purchase from Hardy. In the presence of the
officers, CS-12009 placed a phone call to Hardy and set up the
transaction. The officers searched CS-12009 to ensure that he
was not in possession of any weapons, drugs, or large sums of
money and equipped him with a concealed audio recording and
transmitting device. The officers also provided CS-12009 with
$80.00 in cash, which the officers had previously photocopied in
order to keep track of the currency’s serial numbers. Then, as the
police maintained visual and audio surveillance, CS-12009
walked to a liquor store where he had agreed to meet with
Hardy. A short time later, Hardy pulled up in a white Chevrolet
Monte Carlo, and CS-12009 climbed into the passenger seat.
The officers discretely [sic] followed the Monte Carlo as it
traveled several blocks to a house located at 905 West Marion
Street in Elkhart. There, CS-12009 waited as Hardy went inside
the house, “got the drugs and brought them back out.” Detective
Schroth followed as Hardy drove CS-12009 back to the liquor
store. Once Hardy pulled away, CS-12009 reconvened with the
officers and was again subjected to a thorough search. In
addition to returning $20.00 of the buy money to Detective
Whitmyer, CS-12009 handed Detective Schroth three plastic
baggies appearing to contain crack cocaine, the total weight of
which was .72 grams. The substance in one of the baggies tested
positive for .22 grams of cocaine.
On September 9, 2013, CS-12009 arranged a second controlled
purchase involving Hardy. Once again, CS-12009 met with
several ICE Unit officers, at which time he was searched,
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outfitted with a recording and transmitting device, and provided
with $40.00 in buy money that had previously been photocopied.
This time, Detective Whitmyer, Detective Schroth, and two
other ICE Unit officers monitored CS-12009 as he walked to 318
West Jefferson Street in Elkhart and went inside. A short time
later, the officers observed as Hardy’s white Monte Carlo pulled
up to the house and Hardy went inside. A few minutes later, CS-
12009 emerged and walked back to the officers’ meeting location.
After being searched, CS-12009 turned over two plastic baggies
that appeared to contain crack cocaine and which had a total
weight of .38 grams. The substance in one of the baggies tested
positive for .17 grams of cocaine.
On September 11, 2013, CS-12009 arranged for a final controlled
cocaine purchase from Hardy. As before, the ICE Unit officers
thoroughly searched CS-12009, equipped him with a recording
and transmitting device, and supplied $90.00 in photocopied cash
to complete the purchase. With the officers watching, CS-12009
walked down the block to 318 West Jefferson—where the white
Monte Carlo was already parked out front—and went inside for a
few minutes. Upon his return to the ICE Unit meeting location,
CS-12009 was searched, and he tendered four plastic baggies to
the officers, which appeared to contain crack cocaine and
weighed a total of .67 grams. The substance in one of the baggies
tested positive for .13 grams of cocaine.
For several hours following the third controlled drug purchase,
ICE Unit officers maintained surveillance of 318 West Jefferson
Street and Hardy’s Monte Carlo. At this point, Detective
Whitmyer and Detective Schroth agreed that they had probable
cause to arrest Hardy for dealing in cocaine, but they discussed
the possibility that Hardy might be willing to provide information
about his supplier or act as a confidential informant. When
Hardy finally emerged and drove away from 318 West Jefferson,
a uniformed patrol officer with the Elkhart Police Department
initiated a traffic stop. Detective Whitmyer and Detective
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Schroth—who had followed the patrol officer as he initiated the
stop—removed Hardy from his vehicle, informed him that he
was under arrest, placed him in handcuffs, conducted a cursory
pat-down search for weapons, and transferred him to an
unmarked police vehicle. Detective Whitmyer and Detective
Schroth drove Hardy to a nearby park while other officers
relocated Hardy’s recognizable vehicle to a more inconspicuous
location in order to avoid alerting any neighbors to the fact that
Hardy was talking to the police.
Once at the park, the officers conducted a more thorough search
of Hardy’s person, seizing $975.00 from his pant pockets. The
serial numbers on $55.00 of the recovered bills matched the
photocopied money that CS-12009 had used to purchase cocaine
earlier that day. Based on their conversation with Hardy,
Detective Whitmyer and Detective Schroth decided to release
Hardy rather than taking him to jail to be booked.
Approximately one month later, on October 10, 2013, the State
filed an Information, charging Hardy with Counts I and II,
dealing in cocaine within 1,000 feet of a public park, Class A
felonies, I.C. § 35-48-4-1(a)(1)(C),(b)(3)(B)(ii) (2013); and Count
III, dealing in cocaine, a Class B felony, I.C. § 35-48-4-1(a)(1)(C)
(2013).
On April 20-21, 2015, the trial court conducted a jury trial.
Before any evidence was presented, Hardy moved to suppress the
buy money that was seized from his pockets following the
September 11, 2013 controlled drug purchase, arguing that the
warrantless search was unlawful. After a hearing outside the
jury’s presence, the trial court denied Hardy’s suppression
motion. At the close of the evidence, the jury returned a guilty
verdict on all Counts, and the trial court entered a judgment of
conviction on the same. On May 14, 2015, the trial court held a
sentencing hearing. The trial court imposed a sentence of forty-
one years each on Counts I and II and a sentence of ten years on
Count III—all to be served concurrently for an aggregate
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sentence of forty-one years, fully executed in the Indiana
Department of Correction (DOC).
Id. at *1-3 (footnotes and citations omitted).
[3] On June 6, 2016, Hardy filed a pro se petition for post-conviction relief and the
post-conviction court granted Hardy’s request to appoint a public defender. On
August 18, 2016, the post-conviction court granted the public defender’s motion
to withdraw from the case. Hardy then amended his petition, twice, and the
post-conviction court held an evidentiary hearing on May 4, 2017, before
denying Hardy’s motion with findings of fact and conclusions of law on August
21, 2017. In so doing, the post-conviction court found the following:
13. The allegations raised by [Hardy] in his Petition are that:
the Elkhart Police Department did not have probable
cause to arrest [Hardy] after three (3) drug sales; that the
information the Elkhart Police Department provided in
their affidavit in support of warrantless arrest was
insufficient and/or misleading; and that [trial counsel] was
ineffective for not raising those issues to the trial court.
[Hardy’s] overall claim is, simply, that there was no
probable cause to support his arrest or the formal criminal
charges that followed, and that [trial counsel] should have
argued the same before the jury trial. [Hardy] additionally
avers in his overall argument that [trial counsel] should
have moved to suppress all of the evidence.
14. During the post-conviction relief hearing on May 4, 2017,
[trial counsel], who is now the Chief Public Defender for
Elkhart County, testified that he graduated from Ball State
University with a Bachelor of Science in mathematics,
then graduated from Valparaiso University School of Law
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in 2000 with his law degree; that he has practiced criminal
law for fifteen or sixteen years as both a deputy
prosecuting attorney and a public defender; that he has
focused on trial and appellate work; that he has conducted
“dozens” of criminal jury trials; that he has both defended
and prosecuted drug dealing cases; that he is familiar with
“controlled buys” and how police utilize confidential
informants; that he is familiar with the criminal discovery
procedures in Elkhart County; and that he was provided
with and reviewed discovery in this case. In addition,
[trial counsel] acknowledged that he used his “skill,
expertise, and knowledge” in defending [Hardy’s] case to
the jury and that he explored all appropriate defenses
while representing [Hardy].
15. The Record in this case establishes that during the jury
trial in this case, [trial counsel] orally moved to suppress
evidence and statements related to [Hardy]. After
arguments, the Court denied the oral motion to suppress.
Upon review of the record, the Court notes that [trial
counsel] argued that the “buy money” seized by [sic]
[Hardy] when he was temporarily “arrested” on
September 11, 2013, as well as statements that he made to
the police, should have been suppressed because the
Elkhart Police Department did not formally arrest the
[Hardy] and take him to the county jail the same day.
Instead, as argued by [trial counsel], the police only
momentarily detained [Hardy] and then released him, only
to re-arrest him on October 8, 2013.
16. Based upon the testimony of [trial counsel] at the May 4,
2017 post-conviction relief hearing, the transcript from the
jury trial, and the arguments made by [trial counsel]
during the trial and the motion to suppress, this Court
finds that [trial counsel] did not provide ineffective
assistance of counsel. Contrary to [Hardy’s] allegations,
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[trial counsel] did argue some of the issues raised by
[Hardy]. The Court sat through and presided over the
entire jury trial and witnessed [trial counsel] choose a jury
of [Hardy’s] peers, cross examine witnesses, argue
objections, argue the motion to suppress, and argue the
evidence in his closing argument. [Hardy] has not
demonstrated that [trial counsel’s] performance fell below
an objective standard of reasonableness as determined by
prevailing professional norms, or that the lack of
reasonable representation prejudiced him, as is required by
Strickland . . . . Additionally, [Hardy] has wholly failed to
show that there is a reasonable probability that, but for
[trial counsel’s] unprofessional errors, the result of the
proceeding would be different. Based upon the foregoing,
there is no basis to conclude or find that [trial counsel] was
ineffective in representing [Hardy].
17. During the post-conviction relief hearing on May 4, 2017,
[Hardy] continually argued that there was no probable
cause to support his arrest or the charges that followed.
The Court, on more than one occasion during the hearing,
referenced the memorandum decision from the Indiana
Court of Appeals that affirmed [Hardy’s] convictions and
sentence. The Court of Appeals specifically found that
there was probable cause to arrest and search [Hardy] after
the Elkhart Police Department supervised and directed
three (3) controlled buys of cocaine from [Hardy] See,
Hardy v. State, No. 20A03-1506-CR-538, 2015 WL
7710249 (Ind. Ct. App. November 30, 2015) (unpublished
memorandum decision).
18. In Indiana, if an issue is raised on appeal but decided
adversely, it is res judicata and cannot be re-litigated.
Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). This
Court repeated the same during the post-conviction relief
hearing and instructed [Hardy] that his arguments
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concerning probable cause, or lack thereof, were res
judicata and already decided by the Indiana Court of
Appeals. This Court is bound by the principles of res
judicata and cannot, as a matter of law, render any opinion
regarding whether there was sufficient probable cause to
arrest and/or charge [Hardy] because the Court of Appeals
already determined that there was sufficient probable
cause.
Appellant’s Brief at 24-27. This appeal ensued.
Discussion and Decision
I. Standard of Review
[4] Post-conviction proceedings are civil in nature and the petitioner must establish
his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
These procedures create a narrow remedy for subsequent collateral challenges
to convictions and these challenges must therefore be based on the grounds
enumerated in post-conviction rules. Turner v. State, 974 N.E.2d 575, 581 (Ind.
Ct. App. 2012), trans. denied. And, as we often emphasize, “[p]ost-conviction
proceedings do not afford the petitioner an opportunity for a super appeal, but
rather, provide the opportunity to raise issues that were unknown or
unavailable at the time of the original trial or the direct appeal.” Id.
[5] On appeal, a petitioner who has been denied post-conviction relief faces a
“rigorous standard of review.” Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).
We may not reweigh the evidence or reassess the credibility of the witnesses
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and we consider only the evidence and reasonable inferences supporting the
judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006). To prevail on a claim
of post-conviction relief, the petitioner must show that the evidence is without
conflict and leads “unerringly and unmistakably to a conclusion opposite that
reached by the post-conviction court.” Strowmatt v. State, 779 N.E.2d 971, 975
(Ind. Ct. App. 2002).
[6] The post-conviction court made findings of fact and conclusions of law as
required by Indiana Post-Conviction Rule 1(6). Therefore, we cannot affirm
the judgment on any legal basis, but rather, we must determine if the court’s
findings are sufficient to support its judgment. Graham v. State, 941 N.E.2d
1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 947 N.E.2d 962. We conduct
this review under a clearly erroneous standard. Id.
[7] Where, as here, the judge who presided over the original trial is also the judge
presiding on post-conviction relief, the court’s findings and judgment are
entitled to “greater than usual deference.” McCullough v. State, 973 N.E.2d 62,
75 (Ind. Ct. App. 2012), trans. denied. In such a case, the judge is uniquely
situated to assess whether trial counsel’s performance fell below an objective
standard of reasonableness and whether, but for counsel’s unprofessional
conduct, there was a reasonable probability that a different verdict would have
been reached. Id.
[8] Before proceeding to the merits of Hardy’s appeal, however, we pause briefly to
emphasize that pro se litigants without legal training are held to the same legal
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standards as licensed attorneys. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct.
App. 2016). Pro se litigants must adhere to the rules of procedure and must be
prepared to accept the consequences of their failure to do so, including waiver
for failure to present cogent argument on appeal. Id. at 983-84. An appellate
brief should be prepared in a manner so that each judge, considering the brief
alone and independent of the transcript, can intelligently consider each question
presented. Pluard ex rel. Pluard v. Patients Comp. Fund, 705 N.E.2d 1035, 1038
(Ind. Ct. App. 1999), trans. denied. We will not “search the record to find a basis
for a party’s argument” nor will this court “search the authorities cited by a
party in order to find legal support for its position.” Thomas v. State, 965 N.E.2d
70, 77 n.2 (Ind. Ct. App. 2012), trans. denied. We must not become an
“advocate for a party, or address arguments that are inappropriate or too poorly
developed or expressed to be understood.” Basic, 58 N.E.3d at 984.
[9] In the course of his twenty-page Appellant’s Brief, Hardy raises numerous
issues for our review, seven of which are formally framed as questions
presented. Almost all of these issues, however, are “too poorly developed or
expressed to be understood.” Id. Therefore, we address only the issues we view
to have adequate foundation and deem any and all remaining issues waived.
See id.
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II. Ineffective Assistance of Trial Counsel
[10] Although often unclear as to the why and the how, the thrust of Hardy’s appeal
is his contention that the post-conviction court erred in concluding his trial
counsel was not ineffective. We disagree.
[11] We review claims of ineffective assistance of counsel under the two-prong test
set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on a
claim of ineffective assistance of counsel, the petitioner must show: (1) his
counsel’s performance was deficient; and, (2) the lack of effective representation
prejudiced him. Id. at 687. These prongs are separate and independent
inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind. Ct. App. 2014), trans.
denied, cert. denied, 135 S. Ct. 2376 (2015). Thus, “if it is easier to dispose of an
ineffectiveness claim on one of the grounds instead of the other, that course
should be followed.” Talley v. State, 736 N.E.2d 766, 769 (Ind. Ct. App. 2000).
[12] To satisfy the first prong, the petitioner must show counsel’s representation fell
below an objective standard of reasonableness and counsel committed errors so
serious petitioner did not have the “counsel” as guaranteed by the Sixth
Amendment of the United States Constitution. Garrett v. State, 992 N.E.2d 710,
719 (Ind. 2013). To satisfy the second prong, the petitioner must show a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. Id. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at
694.
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[13] “Counsel is afforded considerable discretion in choosing strategy and tactics,
and we will accord those decisions deference.” Timberlake v. State, 753 N.E.2d
591, 603 (Ind. 2001), cert. denied, 537 U.S. 839 (2002). We recognize a strong
presumption counsel rendered adequate legal assistance. Id. The petitioner
must offer “strong and convincing evidence to overcome this presumption.”
Smith v. State, 822 N.E.2d 193, 202 (Ind. Ct. App. 2005), trans. denied.
A. Probable Cause Affidavit1
[14] Hardy first claims that “the probable cause affidavit was defective because it
contained false and misleading information and did not include any of the
necessary elements of a controlled buy.” Appellant’s Brief at 7. Therefore,
Hardy argues, his trial counsel was ineffective for failing to request a Franks
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).
[15] In Franks, the Supreme Court held that that “where the defendant makes a
substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and [the false statement was] necessary to the
finding of probable cause, the Fourth Amendment requires that a hearing be
held . . . .” Id. at 155-56. If an allegation of perjury or reckless disregard is
1
To the extent Hardy appears to argue that probable cause did not exist for his arrest, such argument is res
judicata. We concluded probable cause existed for Hardy’s arrest on direct appeal. Hardy, No. 20A03-1506-
CR-538 at *4. If an issue was raised on appeal, but decided adversely, it is res judicata. Reed v. State, 856
N.E.2d 1189, 1194 (Ind. 2006).
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established by the defendant, and the rest of the affidavit is insufficient to
establish probable cause, “the search warrant must be voided” and any evidence
obtained from its fruits excluded. Id. at 156.
[16] Applied here, Hardy alleges that had trial counsel requested a Franks hearing,
“all the fruits of the poisonous tree (the alleged buy money and drugs involved
in all three alleged buy dates) should have been suppressed at trial.”
Appellant’s Br. at 10. Even assuming Hardy could satisfy his burden of
demonstrating that a false statement was included in the affidavit of probable
cause, Hardy’s reliance on Franks for the suppression of evidence
misunderstands the law. The evidence in question was seized as the result of a
search incident to arrest—not as the result of a search warrant. Hardy, No.
20A03-1506-CR-538 at *4. Thus, even if trial counsel had requested a Franks
hearing, counsel would not have prevailed. “Counsel’s performance is not
deficient for failing to present a claim that would have been meritless.” Peak v.
State, 26 N.E.3d 1010, 1016 (Ind. Ct. App. 2015). Accordingly, Hardy fails to
show clear error in the post-conviction court’s finding.
B. Adequate Investigation
[17] Next, Hardy alleges that trial counsel was ineffective for failing to conduct
adequate investigation.
[18] Counsel “has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S.
at 691. However, it is well settled that we should resist judging an attorney’s
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performance with the benefit of hindsight. McKnight v. State, 1 N.E.3d 193, 200
(Ind. Ct. App. 2013). Our supreme court has cautioned:
With the benefit of hindsight, a defendant can always point to
some rock left unturned to argue counsel should have
investigated further. The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that
it deprived the defendant of a fair trial.
Ritchie v. State, 875 N.E.2d 706, 719 (Ind. 2007). Thus, when deciding a claim
of ineffective assistance for failure to investigate, we apply a great deal of
deference to counsel’s judgments. McKnight, 1 N.E.3d at 201.
[19] Here, Hardy alleges that trial counsel “was ineffective for failing to conduct a
professional interview of Hardy and other residents of the 318 West Jefferson
Street apartment complex. Had [trial counsel] acted professionally he would
have learned that Hardy rented one of the apartments on the second floor.”
Appellant’s Br. at 10. Hardy further claims the interviews would have revealed
“crucial facts showing” that the confidential informant “did not know [Hardy’s]
last name or if [Hardy] was his actual real name at any time before his first
arrest.” Id. at 11. Not only does Hardy fail to provide a factual basis for these
allegations in the record, he also fails to advance cogent argument regarding
why trial counsel’s performance was ineffective or how he was prejudiced by
these failures. Therefore, Hardy failed to meet his burden and we must
conclude trial counsel’s investigation was not inadequate.
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C. Trial Arguments
[20] In his final argument which we find sufficiently developed to address on appeal,
Hardy alleges trial counsel’s performance was ineffective at the trial itself.
Specifically, Hardy contends that trial counsel should have advanced arguments
regarding the fact that the rear entrances of the buildings where the controlled
buys occurred were not under surveillance, that officers did not actually witness
an exchange of drugs, and that alternative sources of the drugs existed other
than Hardy. These allegations are contradicted by the record, however, as trial
counsel thoroughly cross-examined officers and repeatedly emphasized these
facts in front of the jury. See Appellant Appendix Brief at 19-33. Moreover,
trial counsel argued that the confidential informant was paid for his information
and highlighted the informant’s financial incentive to falsely accuse Hardy. Id.
at 22. As such, Hardy has failed to show that the post-conviction court erred in
rejecting his claims below.
Conclusion
[21] The post-conviction court did not err in denying Hardy’s petition for post-
conviction relief. Accordingly, we affirm.
[22] Affirmed.
Najam, J., and Altice, J., concur.
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