Christopher Bryant v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 10 2017, 8:08 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
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estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Christopher A. Bryant Curtis T. Hill
Michigan City, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Bryant, January 10, 2017
Appellant-Defendant, Court of Appeals Case No.
45A04-1602-PC-434
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Samuel L. Cappas,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G04-1211-PC-17
Robb, Judge.
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Case Summary and Issues
[1] Following a jury trial in 2010, Christopher Bryant was found guilty of resisting
law enforcement, possession of marijuana, and two counts of dealing in a
narcotic drug. Bryant also admitted to being an habitual substance offender.
The trial court sentenced Bryant to an aggregate sentence of forty-five years to
be executed in the Indiana Department of Correction. On direct appeal, we
affirmed his convictions and sentence. Bryant v. State, 959 N.E.2d 315, 317
(Ind. Ct. App. 2011). Thereafter, Bryant filed a petition for post-conviction
relief wherein he alleged prosecutorial misconduct and ineffective assistance of
trial and appellate counsel, which the post-conviction court denied. Bryant, pro
se, now appeals the denial of post-conviction relief, raising two issues for our
review: (1) whether the post-conviction court erred in concluding Bryant’s trial
counsel was not ineffective, and (2) whether the post-conviction court erred in
concluding Bryant’s appellate counsel was not ineffective. Concluding trial and
appellate counsel were not ineffective, we affirm.
Facts and Procedural History
[2] We summarized the facts and procedural history of this case in Bryant’s direct
appeal:
On September 1, 2010, Hammond Police outfitted a confidential
informant (“CI”) with an audio-visual recorder, provided him
with $150 of “buy” money, and directed him to arrange a drug
deal with a person known only to the police and the CI as
“Prophet,” but who later turned out to be Bryant. The CI
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telephoned Bryant, who arrived at the CI’s residence
approximately thirty minutes later. The CI approached Bryant’s
vehicle and purchased $130 worth of heroin, leaving him with
$20 of buy money left. The CI returned to his residence and gave
0.54 grams of heroin and the remaining buy money to police.
Hammond Police Detective Marc Ferry followed Bryant’s
vehicle when it pulled away. Eventually, Bryant failed to signal a
turn, and Detective Ferry activated his lights and siren to initiate
a stop. Detective Ferry approached the vehicle, and, after
knocking on the driver’s side window with his flashlight, asked
twice for Bryant’s identification and vehicle registration. When
Bryant asked why he had been stopped, Detective Ferry said,
“Well, for starters because of the loud music.” At this point,
Bryant drove off slowly.
Detective Ferry returned to his vehicle and pursued Bryant, who
leaned “hard to the right” momentarily before stopping in an
empty lot after approximately two blocks. Detective Ferry had
witnessed others lean and pull away as Bryant had done and
believed that “people when they pull away like that, they are
buying time, they're trying to hide something.” Detective Ferry
testified that “[a]t that time, [Bryant was being arrested] for
resisting law enforcement.” When Bryant was taken into
custody, Detective Ferry received permission from his supervisor
to conduct a strip search. When two officers forcibly bent Bryant
over, Detective Ferry recovered a “clear plastic bag which was
slightly torn opened [sic], containing a green, leafy substance”
that was determined to be 2.14 grams of marijuana from between
Bryant’s buttocks. Bryant then told Detective Ferry that he “got
it from the patrol car that transported him into the station.”
Bryant had not been read his Miranda rights at the time of the
search. Detective Ferry also recovered the $130 of buy money
from Bryant’s pants. Police identified “Prophet” as Bryant, and
he was eventually released.
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On September 7, 2010, police again fitted the CI with an audio-
visual recorder, provided him with $200 in buy money, and again
instructed him to arrange a drug deal with Bryant. The CI
telephoned Bryant and told him that he wanted to purchase one
gram of heroin. When Bryant arrived at the CI’s residence, the
CI approached the vehicle and purchased $230 worth of heroin
for $200 from Bryant. The CI returned to his residence and gave
police officers the 0.93 grams of heroin he had just purchased.
Police followed Bryant’s vehicle as he drove away and arrested
him inside a store in Hammond. The next day, the CI selected
Bryant from a photo array and identified him as the person from
whom he had purchased heroin on September 1 and 7, 2010.
Eventually, the State charged Bryant with two counts of Class A
felony dealing in a narcotic drug, Class A misdemeanor resisting
law enforcement, Class A misdemeanor marijuana possession,
and with being a habitual substance offender.
Following trial, a jury found Bryant guilty of two counts of Class
A felony dealing in a narcotic drug, Class A misdemeanor
resisting law enforcement, and Class A misdemeanor marijuana
possession. Bryant admitted that he was a habitual substance
offender. The trial court sentenced Bryant to forty-two years for
each of his two dealing in a narcotic drug convictions, one year
for resisting law enforcement, and one year for marijuana
possession, and with being a habitual substance offender, all
sentences to be served concurrently. The trial court
enhanced Bryant’s sentence three years by virtue of his habitual
substance offender status.
Id. at 317-19 (alteration in original) (citations omitted). Bryant appealed his
convictions and sentence, arguing inter alia that trial counsel rendered
ineffective assistance in failing to challenge the constitutionality of the strip
search. Specifically, Bryant contended the search was unreasonable under the
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Indiana Constitution. We disagreed and affirmed his convictions and sentence.
Id. at 317.
[3] On November 15, 2012, Bryant filed a petition for post-conviction relief and the
post-conviction court appointed a State Public Defender to represent him. The
State Public Defender later withdrew as counsel after consulting with Bryant
and conducting an appropriate investigation into Bryant’s claims. Nearly a
year later, Bryant sought to withdraw his petition without prejudice, which the
post-conviction court allowed.
[4] On May 7, 2014, Bryant filed a second petition for post-conviction relief, which
the post-conviction court deemed an amendment and reactivation of Bryant’s
first petition. Bryant raised seventeen claims of ineffective assistance of trial
counsel and seven claims of ineffective assistance of appellate counsel.
Following a six-part evidentiary hearing conducted over a span of six months,
the post-conviction court issued its findings of fact and conclusions thereon
denying Bryant post-conviction relief. Bryant, pro se, now appeals.
Discussion and Decision
I. Standard of Review
[5] Post-conviction proceedings are not an opportunity for a super-appeal.
Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), cert. denied, 537 U.S. 839(2002). Rather, they create a narrow remedy for subsequent collateral
challenges to convictions that must be based on grounds enumerated in the
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post-conviction rules. Id. If not raised on direct appeal, a claim of ineffective
assistance of counsel is properly presented in a post-conviction
proceeding. Id. A claim of ineffective assistance of appellate counsel is also an
appropriate issue for post-conviction review. Id. The petitioner must establish
his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
[6] A petitioner who has been denied post-conviction relief faces a “rigorous
standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).
In reviewing the judgment of a post-conviction court, we may not reweigh the
evidence nor reassess witness credibility; rather we consider only the evidence
and reasonable inferences supporting the judgment. Hall v. State, 849 N.E.2d
466, 468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of
post-conviction relief unless the evidence leads “unerringly and unmistakably to
a decision opposite that reached by the post-conviction court.” McCary v.
State, 761 N.E.2d 389, 391 (Ind. 2002). Finally, we do not defer to the post-
conviction court’s legal conclusions, but do accept its factual findings unless
they are clearly erroneous. Stevens v. State, 770 N.E.2d 739, 746 (Ind.
2002), cert. denied, 540 U.S. 830 (2003).
II. Ineffective Assistance of Trial Counsel
[7] Bryant contends the post-conviction court erred in concluding his trial counsel
was not ineffective. The State counters Bryant raised an ineffective assistance
of trial counsel claim on direct appeal and is therefore barred from re-litigating
the claim. We agree with the State.
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[8] “Although a defendant may present a claim of ineffective assistance of counsel
on direct appeal, if he so chooses, the issue will be foreclosed from collateral
review.” Rogers v. State, 897 N.E.2d 955, 965 (Ind. Ct. App. 2008) (citing Woods
v. State, 701 N.E.2d 1208, 1220 (Ind. 1998)), trans. denied. On direct appeal,
Bryant raised a claim of ineffective assistance of trial counsel. We therefore
conclude Bryant is barred from re-litigating his claim of ineffective assistance of
trial counsel in this post-conviction proceeding.
III. Ineffective Assistance of Appellate Counsel
[9] Bryant also argues the post-conviction court erred in concluding his appellate
counsel was not ineffective. Specifically, Bryant contends appellate counsel
rendered ineffective assistance by failing to challenge the reasonableness of the
strip search under the Fourth Amendment to the United States Constitution. 1
We disagree.
[10] The standard for ineffective assistance of appellate counsel is the same standard
as for trial counsel. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).
1
In his petition for post-conviction relief, Bryant alleges several instances of ineffective assistance by his
appellate counsel. In his ninety-two-page handwritten brief on appeal, he lists most, if not all, of those
instances in the Table of Contents, the Statement of the Case, and the Summary of Argument. However, the
only instance Bryant addresses in the Argument section of his brief is his contention appellate counsel failed
to challenge the reasonableness of the strip search under the Fourth Amendment. Thus, to the extent Bryant
intended to raise additional instances of alleged ineffective assistance by appellate counsel, we will not
develop an argument on Bryant’s behalf, see Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012),
trans. denied, and conclude those arguments are waived for failure to present a cogent argument, see Ind.
Appellate Rule 46(A)(8).
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To establish a claim of ineffective assistance of counsel, a
defendant must demonstrate to the post-conviction court that
counsel performed deficiently and the deficiency resulted in
prejudice. This standard asks whether, considering all the
circumstances, counsel’s actions were reasonable under
prevailing professional norms. Judicial scrutiny of counsel’s
performance must be highly deferential. And even if appellate
counsel’s performance is deficient, to prevail, petitioner must
demonstrate a reasonable probability that the outcome of the
direct appeal would have been different. When evaluating a
claimed deficiency in appellate representation due to an omission
of an issue, a post-conviction court is properly deferential to
appellate counsel’s choice of issues for appeal unless such a
decision was unquestionably unreasonable. Such deference is
appropriate because the selection of issues for direct appeal is one
of the most important strategic decisions of appellate
counsel. Appellate counsel’s performance, as to the selection and
presentation of issues, will thus be presumed adequate unless
found unquestionably unreasonable considering the information
available in the trial record or otherwise known to the appellate
counsel. In crafting an appeal, counsel must choose those issues
which appear from the face of the record to be most availing.
Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments
on appeal and focusing on one central issue if possible, or at most
on a few key issues. Thus, to prevail in such claim in post-
conviction proceedings, it is not enough to show that appellate
counsel did not raise some potential issue; instead, the defendant
must show that the issue was one which a reasonable attorney
would have thought availing.
Hampton v. State, 961 N.E.2d 480, 491-92 (Ind. 2012) (citations, alterations, and
internal quotation marks omitted).
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[11] At the outset, we acknowledge Bryant’s appellate counsel only challenged the
reasonableness of the strip search under the Indiana Constitution, not under the
Fourth Amendment to the United States Constitution. However, in 2001, our
supreme court in Edwards v. State held
that routine, warrantless strip searches of misdemeanor arrestees,
even when incident to lawful arrests, are impermissible under the
Indiana Constitution and the United States Constitution, and that
before jail officials may conduct warrantless strip searches of
misdemeanor arrestees detained awaiting the posting of bond,
those officials must have a reasonable suspicion that the arrestee
is concealing weapons or contraband.
759 N.E.2d 626, 627-28 (Ind. 2001) (emphasis added). Thus, at the time of
Bryant’s direct appeal in 2011, our supreme court made clear both the state and
federal analysis in determining the reasonableness of a warrantless strip search
of a misdemeanor arrestee is the same and each requires law enforcement to
have reasonable suspicion the arrestee is concealing weapons or contraband.
See id. In light of the fact both analyses were the same and Bryant’s appellate
counsel challenged the search under the Indiana Constitution, we cannot say
appellate counsel’s decision to not challenge the search under the Fourth
Amendment was “unquestionably unreasonable” nor can we see how Bryant
suffered any prejudice. See Hampton, 961 N.E.2d at 491.
[12] In any event, we further emphasize Detective Ferry had knowledge of, and was
investigating, Bryant’s participation in dealing narcotics. When Detective Ferry
initiated a traffic stop of Bryant shortly following a controlled buy, he observed
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Bryant drive away slowly and veer to the right, an action Detective Ferry
believed based on his experience indicated Bryant was attempting to conceal
something. As we held in Bryant’s direct appeal, such facts give rise to
reasonable suspicion to justify a warrantless strip search under the Indiana
Constitution. See Bryant, 959 N.E.2d at 320. Therefore, Bryant’s claim would
have also failed under the Fourth Amendment. We conclude appellate counsel
did not render ineffective assistance by failing to challenge the search under the
Fourth Amendment. See Singleton v. State, 889 N.E.2d 35, 41 (Ind. Ct. App.
2008) (noting appellate counsel does not render ineffective assistance for failing
to raise issues that are unlikely to succeed), trans. denied.
Conclusion
[13] The post-conviction court did not err in concluding Bryant is not entitled to
post-conviction relief on his claims he received ineffective assistance of trial and
appellate counsel. Accordingly, we affirm.
[14] Affirmed.
Kirsch, J., and Barnes, J., concur.
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