James "Jamar" Mason v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be May 11 2016, 8:31 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
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
Jonathan O. Chenoweth George P. Sherman
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James “Jamar” Mason May 11, 2016
Appellant-Petitioner, Court of Appeals Case No.
71A03-1512-PC-2099
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Respondent. Marnocha, Judge
Trial Court Cause No.
71D02-1207-PC-37
Bradford, Judge.
Case Summary
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[1] In 2009, Appellant-Petitioner James Mason was arrested after selling crack
cocaine to an undercover police officer and a police informant. Mason’s
conviction for dealing in cocaine was enhanced because the deal took place
within 1,000 feet of a school. Mason’s conviction was sustained on direct
appeal. Mason filed a petition for post-conviction relief (“PCR”) arguing that
his trial counsel was ineffective for failing to argue that Indiana Code section
35-48-4-16 (2009) precluded the enhancement. Mason now appeals the post-
conviction court’s denial of his PCR petition. We affirm.
Facts and Procedural History
[2] We set out the facts of this case in Mason’s 2011 direct appeal.
On September 24, 2009, South Bend Police Officer Paul Moring,
an undercover police officer with the South Bend Police
Department’s Metro Special Operations Section, was conducting
a “bust-buy operation, for open air drug dealing” by “people that
are either on foot or standing [on] the street corner, riding
bicycles, sitting in vehicles” and “selling narcotics to individuals
that flag them down or walk up to them.” (Tr. 108). As part of
the operation, Officer Moring was driving an unmarked vehicle
in an area known for drug dealing. Other officers were posted
outside the vehicle and monitoring the vehicle with video and
audio recording devices. Minnie Franklin, an informant, was in
the passenger seat.
As he drove around the area, Officer Moring observed Mason
standing in an alley. Officer Moring had not seen Mason before,
and it appeared as if he were loading items from a garage into a
van. As Officer Moring drove toward Mason, Franklin asked “if
he had a 2–0,” which is “street slang for twenty dollars of crack
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cocaine.” (Tr. 112). Mason nodded, indicating they were to drive
down the alley.
Officer Moring slowly drove down the alley while Mason
followed on foot. Once Officer Moring parked on the nearest
cross-street, Mason approached the front passenger side of the
vehicle and began talking with Franklin, who again told him that
she was “looking for a twenty.” (Tr. 114). Mason then walked
over to the driver’s side of the vehicle and asked for a ride to a
place where he could get some cocaine. Mason “was persistent in
needing a ride to Indiana Street to obtain the drugs.” (Tr. 117).
Officer Moring declined and told Mason that he needed to pick
up his child. Mason therefore gave Officer Moring his cell phone
number, and Officer Moring told him that he would be back “in
a few minutes.” (Tr. 117).
Shortly thereafter, Officer Moring returned to the alley. Mason
got in his van and told Officer Moring to follow him. Officer
Moring followed Mason to East Dubail Street, where Mason
parked less than 100 feet from Studebaker School. Following
Mason’s directions, Officer Moring parked behind the van.
Officer Moring watched as Mason walked northbound. Other
officers conducting surveillance reported that Mason appeared to
be obtaining cocaine.
Mason then returned to Officer Moring’s vehicle and “asked for
the money.” (Tr. 127). Officer Moring gave Mason twenty
dollars, in return for which Mason gave Officer Moring .16
grams of “loose crack cocaine.” (Tr. 127). Officers arrested
Mason after Officer Moring left the scene.
On September 28, 2009, the State charged Mason with class A
felony dealing in cocaine. The trial court commenced a two-day
jury trial on November 16, 2010, after which the jury found
Mason guilty as charged. Following a sentencing hearing on
January 5, 2011, the trial court sentenced Mason to twenty years.
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Mason v. State, 953 N.E.2d 681, slip op. *1 (Ind. Ct. App., Sept. 9, 2011). On
direct appeal, Mason argued that there was insufficient evidence to rebut his
entrapment defense, and this court affirmed his conviction. Id. at 2.
[3] On July 26, 2012, Mason filed a pro se PCR petition which was amended by
counsel on May 15, 2015. The post-conviction court held an evidentiary
hearing before ultimately denying Mason’s petition.
Discussion and Decision
[4] “Post-conviction proceedings are not ‘super appeals’ through which convicted
persons can raise issues they failed to raise at trial or on direct appeal. Rather,
post-conviction proceedings afford petitioners a limited opportunity to raise
issues that were unavailable or unknown at trial and on direct appeal.” Bahm v.
State, 789 N.E.2d 50, 57 (Ind. Ct. App. 2003) decision clarified on reh’g, 794
N.E.2d 444 (Ind. Ct. App. 2003).
In reviewing the judgment of a post-conviction court, appellate
courts consider only the evidence and reasonable inferences
supporting its judgment. The post-conviction court is the sole
judge of the evidence and the credibility of the witnesses. To
prevail on appeal from denial of post-conviction relief, the
petitioner must show that the evidence as a whole leads
unerringly and unmistakably to a conclusion opposite to that
reached by the post-conviction court.… Only where the evidence
is without conflict and leads to but one conclusion, and the post-
conviction court has reached the opposite conclusion, will its
findings or conclusions be disturbed as being contrary to law.
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Hall v. State, 849 N.E.2d 466, 468-469 (Ind. 2006) (internal citations and
quotations omitted).
[5] Mason claims that he received ineffective assistance of trial counsel. We review
claims of ineffective assistance of counsel based upon the principles enunciated
in Strickland v. Washington, 466 U.S. 668 (1984):
[A] claimant must demonstrate that counsel’s performance fell
below an objective standard of reasonableness based on
prevailing professional norms, and that the deficient performance
resulted in prejudice. Prejudice occurs when the defendant
demonstrates that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” A reasonable probability arises
when there is a “probability sufficient to undermine confidence in
the outcome.”
Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006) (quoting Strickland, 466
U.S. at 694). “‘A strong presumption arises that counsel rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.’” Pruitt v. State, 903 N.E.2d 899, 906 (Ind. 2009)
(quoting Lambert v. State, 743 N.E.2d 719, 730 (Ind. 2001)).
[6] At the time of Mason’s offense, dealing in cocaine was a Class B felony which
was enhanced to a Class A felony in this case because the deal took place
within 1,000 feet of a school. Ind. Code § 35-48-4-1 (2009). Mason argues that
his trial counsel was ineffective for failing to argue that the statutory defense
provided by Indiana Code section 35-48-4-16(c) precluded the enhancement.
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It is a defense for a person charged under this chapter with an
offense that contains an element listed in subsection (a) that a
person was in, on, or within one thousand (1,000) feet of school
property, a public park, a family housing complex, or a youth
program center at the request or suggestion of a law enforcement
officer or an agent of a law enforcement officer.
Ind. Code § 35-48-4-16(c) (2009).
[7] At the post-conviction hearing, trial counsel testified that there was no evidence
that Officer Moring or the informant suggested the deal location and, in fact, it
was Mason who chose the location.
[I]t is readily apparent from [the] trial transcript, that Officer
Moring actually followed the defendant to the area where the
transaction was to take place. And it wasn’t Officer Moring who
told the defendant or any agent of Officer Moring, who told the
defendant where to meet him, it was the defendant who chose
the location. And from the photographs introduced into evidence
at trial it was apparently clear to anybody that that location was
right across from the Studebaker School. And so because it was
Mr. Mason who chose the location and not the police, the
entrapment defense under Ind. Code 35-48-4-[1]6(c), simply does
not apply. I can’t find at all any evidence which would indicate
that anybody, including Mr. Moring, that that location was
chosen by the police or an agent of the police, but it was in fact
chosen by Mr. Mason for the transaction and the dealing then
took place.
PCR Tr. p. 25.
[8] Mason seems to concede that neither Officer Moring nor the informant
suggested a specific location to complete the deal. Instead, Mason argues that
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he would not have been at the location at all had Moring and the informant not
requested to buy crack cocaine in the first place. This argument is no more than
an attempt by Mason to rehash his entrapment defense, which failed at trial.
Officer Moring and the informant were ready and willing to purchase the
contraband at the original location but Mason voluntarily led Officer Moring to
another location near the school to complete the deal.
[9] To successfully invoke the defense provided by Indiana Code section 35-48-4-
16(c), the evidence must show that police, or an informant being directed by
police, was the active party in determining the location of the activity in
question, and that the defendant was passive and only acquiesced to the officer
or informant’s request. See Bell v. State, 881 N.E.2d 1080, 1086 (Ind. Ct. App.
2008) (finding that police suggested location within 1,000 feet of a public park
where defendant was summoned to informant’s apartment by the informant at
the behest of police to complete sale of crack-cocaine); see also Abbott v. State,
961 N.E.2d 1016, 1018 (Ind. 2012) (revising sentence for possession of cocaine
enhanced for being within 1,000 feet of a school where police pulled over
vehicle in which defendant was riding near a school and “[n[othing in the
record suggest[ed] that the driver of the car had anything to do with the location
of the stop.”). Because the evidence does not support Mason’s proposed
statutory defense, Mason’s trial counsel was not ineffective for declining to raise
the issue.
[10] The judgment of the post-conviction court is affirmed.
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Bailey, J., and Altice, J., concur.
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