Nathan A. Slabach v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Aug 06 2015, 8:26 am
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
Victoria Christ Eric P. Babbs
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nathan A. Slabach, August 6, 2015
Appellant-Defendant, Court of Appeals Cause No.
20A03-1408-PC-292
v.
Appeal from the Elkhart Superior
State of Indiana, Court
The Honorable George W.
Appellee-Plaintiff, Biddlecome, Judge
Cause No. 20D03-1210-PC-90
Robb, Judge.
Case Summary and Issues
[1] Nathan Slabach appeals the post-conviction court’s denial of his petition for
post-conviction relief, raising two issues for review: (1) whether Slabach
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received ineffective assistance of counsel, and (2) whether Slabach’s guilty plea
was knowing, intelligent, and voluntary. Concluding the post-conviction court
did not err by denying Slabach’s petition, we affirm.
Facts and Procedural History
[2] In the fall of 2008, Phillip Miller hired Slabach to repair the garage at a vacant
house that Miller owned in Elkhart, Indiana. Slabach, in turn, hired Joseph
Buelna to help him with the work. Unbeknownst to Miller, Slabach and Buelna
used Miller’s vacant house to manufacture and smoke methamphetamine.
[3] On October 13, 2008, law enforcement officers investigated a possible
methamphetamine lab at the house owned by Miller. Officers approached the
house and detected a chemical odor which they associated with the
manufacture of methamphetamine. Two officers climbed a ladder propped
against the house which led to the second floor, where they discovered Buelna
inside along with an assortment of materials used to manufacture
methamphetamine. Slabach arrived at the house soon after, accompanied by
Kammi Pantoja. Slabach, Pantoja, and Buelna were all arrested. An active
methamphetamine lab was found in Pantoja’s vehicle, along with syringes,
iodine, digital scales, and fuel additive. A search of the house revealed several
items associated with the manufacture of methamphetamine: eight spent
reaction vessels; pseudoephedrine tablets; hydrochloric acid generators; lithium
batteries; cold packs; coffee filters; and three active reaction vessels. Two of the
reaction vessels tested positive for ephedrine or pseudoephedrine. The third
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reaction vessel tested positive for liquid methamphetamine, which weighed
approximately thirteen grams.
[4] Slabach was charged with aiding in dealing in methamphetamine over three
grams, a Class A felony, and burglary, a Class C felony. On September 10,
2009, Slabach pled guilty to both counts. In exchange for his plea, his sentence
was capped at thirty years, and criminal charges against Slabach in a separate
cause were dismissed. Slabach was sentenced to thirty years imprisonment.
[5] Buelna was charged with Class A felony manufacturing methamphetamine and
convicted of that offense in August 2012. Slabach testified at Buelna’s trial.
Slabach testified that prior to the officers’ arrival at the house, he removed
approximately six grams of methamphetamine from three reaction vessels and
left. He claimed he smoked some of that methamphetamine and threw the rest
away before he was arrested.
[6] On October 1, 2012, Slabach filed a petition for post-conviction relief. An
evidentiary hearing was held on that petition on March 5, 2014. At the hearing,
Slabach presented testimony from Hailey Newton and Sara Wildeman, two
Indiana State Police lab analysts, and Fay Schwartz, Slabach’s trial counsel.
[7] Schwartz testified about a handwritten note she wrote referencing a
conversation with a deputy prosecutor about the case. The note indicated that
the State’s expert witness would testify that the conversion rate from raw
materials to methamphetamine was between 40-75%. A computation at the
bottom of the note said “19.3 x .40 = 7.72.” Exhibit 5. However, Newton and
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Wildeman clarified that the conversion rate applies to the amount of
pseudoephedrine, which is a key ingredient for methamphetamine. Newton
testified that the pseudoephedrine tablets recovered contained 2.16 grams of
pseudoephedrine. Utilizing the conversation rate of 40-75%, the 2.16 grams of
pseudoephedrine would not produce an amount of methamphetamine equal to
or greater than three grams. Slabach testified that he pled guilty to the Class A
felony because he believed that the evidence, as presented to him by Schwartz,
showed that he was guilty of the crime as charged.
[8] On July 29, 2014, the post-conviction court denied Slabach’s petition for relief.
This appeal followed. Additional facts will be provided as necessary.
Discussion and Decision
I. Standard of Review
[9] A petitioner seeking post-conviction relief bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). A petitioner who is denied post-conviction relief appeals from a
negative judgment, which may be reversed only if “the evidence as a whole
leads unerringly and unmistakably to a decision opposite that reached by the
post-conviction court.” Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), cert.
denied, 540 U.S. 830 (2003). We defer to the post-conviction court’s factual
findings, unless they are clearly erroneous. Id. at 746.
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II. Ineffective Assistance of Counsel
[10] First, Slabach argues that his trial counsel was ineffective. The Sixth
Amendment’s “right to counsel is the right to the effective assistance of
counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann
v. Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish a claim of ineffective
assistance of counsel, a convicted defendant must show (1) that counsel’s
performance was deficient such that it fell below an objective standard of
reasonableness based on prevailing professional norms and (2) the defendant
was prejudiced by counsel’s deficient performance. Id. at 687. When
considering whether counsel’s performance was deficient, the reviewing court
begins with a “strong presumption” that counsel’s performance was reasonable.
Id. at 689. A defendant is prejudiced if “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id.
[11] When a defendant contests his guilty plea based on claims of ineffective
assistance of counsel, we apply the same two-part test from Strickland discussed
above. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). The first part, regarding
counsel’s performance, is largely the same. Id. The prejudice requirement,
however, “focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process. In other words, . . . the
defendant must show that there is a reasonable probability that, but for
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counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Id. at 59.
[12] The two prongs of the Strickland test—performance and prejudice—are
independent inquiries, and both prongs need not be addressed if the defendant
makes an insufficient showing as to one of them. 466 U.S. at 697. For
instance, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice . . . that course should be followed” without
consideration of whether counsel’s performance was deficient. Id.
[13] Slabach contends that his counsel performed deficiently by incorrectly
informing him that the State would be able to prove that he manufactured
methamphetamine in an amount greater than three grams. Specifically,
Slabach claims that his counsel’s incorrect advice was the result of inadequate
investigation and improper arithmetic. The State argues that Slabach overlooks
the significance of the liquid methamphetamine, which was sufficient to prove
Slabach was guilty of the Class A felony at the time of his guilty plea.
[14] Both before and for several years after Slabach’s guilty plea in 2009, it was
established that the weight of an unfinished methamphetamine product could
be used to prove guilt of manufacturing methamphetamine under Indiana Code
section 35-48-4-1.1. See, e.g., Hundley v. State, 951 N.E.2d 575, 581-84 (Ind. Ct.
App. 2011), trans. denied; Caron v. State, 824 N.E.2d 745, 754 n.7 (Ind. Ct. App.
2005), trans. denied; Traylor v. State, 817 N.E.2d 611, 619-20 (Ind. Ct. App.
2004), trans. denied. It was not until more recently, in Buelna v. State, that our
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Supreme Court overruled those decisions and held that only the finished
methamphetamine product—or evidence as to the amount of finished product
that an intermediate mixture would have yielded—may be used to support a
weight enhancement for manufacturing methamphetamine. 20 N.E.3d 137,
149 (Ind. 2014). However, for the purposes of this case, it is the pre-Buelna
decisions that are controlling, because a finding of ineffective assistance of
counsel “requires consideration of legal precedent available to counsel at the
time of his representation of the accused, and counsel will not be deemed
ineffective for not anticipating or initiating changes in the law.” Sweeney v.
State, 886 N.E.2d 1, 8 (Ind. Ct. App. 2008), trans. denied.
[15] At bottom, Slabach’s argument is that he was improvidently advised to plead
guilty when the State could not have proven he was guilty of manufacturing
methamphetamine as a Class A felony. Slabach is incorrect. The intermediate
mixture of liquid methamphetamine found by police weighed thirteen grams.
At the time Slabach pled guilty, that evidence was sufficient to prove he
manufactured methamphetamine in an amount greater than three grams.
Therefore, Slabach’s claim—that he was improperly advised to plead guilty to
an offense that the State could not prove—is erroneous. Slabach cannot
demonstrate that he was prejudiced by his counsel’s advice, and thus his claim
of ineffective assistance fails.
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III. Validity of Slabach’s Plea
[16] Second, Slabach claims that he did not enter into his guilty plea intelligently
and voluntarily. A guilty plea is valid “only if done voluntarily, knowingly, and
intelligently, with sufficient awareness of the relevant circumstances and likely
consequences.” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (citation and
quotation marks omitted). We look at all evidence before the post-conviction
court that supports its determination that a guilty plea was voluntary, knowing,
and intelligent. Moffitt v. State, 817 N.E.2d 239, 248-49 (Ind. Ct. App. 2004),
trans. denied.
[17] Slabach’s claim of an invalid plea rests on the same faulty premise as his
ineffective assistance claim—namely, he wrongly believes that the State could
not have proved he was guilty of manufacturing methamphetamine as a Class
A felony. We therefore conclude that the voluntariness of his plea could not
have been negated by a mistaken belief concerning the State’s ability to prove
he was guilty of manufacturing methamphetamine as a Class A felony.1
Conclusion
[18] Concluding the trial court did not err by denying Slabach’s petition for post-
conviction relief, we affirm.
1
The State argues that Slabach does not present a valid challenge to the validity of his plea, but that
“Slabach’s claim fails even on its own on [sic] terms.” Brief of Appellee at 19. We agree that Slabach’s claim
fails regardless, and thus a more in depth discussion of his claim’s viability is unnecessary.
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[19] Affirmed.
May, J., and Mathias, J., concur.
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