Jonathan Reiner v. State of Indiana ( 2013 )

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
May 07 2013, 8:27 am
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
ANNE MURRAY BURGESS MONIKA PREKOPA TALBOT
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JONATHAN REINER, )
)
Appellant-Petitioner, )
)
vs. ) No. 20A05-1210-PC-499
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable George W. Biddlecome, Judge
Cause No. 20D03-1102-PC-6
May 7, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Petitioner Jonathan Reiner seeks post-conviction relief from his
conviction and thirty-year sentence for Class A felony dealing in methamphetamine.
Reiner was arrested after being found inside a local residence housing a clandestine
methamphetamine laboratory. At trial, Appellee-Respondent the State of Indiana
presented evidence that 0.7 grams of finished methamphetamine and at least 2.66 grams
of pseudoephedrine were found inside the residence. An Indiana State Police detective
also testified that the maximum yield rate from the conversion of pseudoephedrine to
methamphetamine is 92 to 93 percent. Applying a 90 percent yield rate to the 2.66 grams
of pseudoephedrine, the State argued that Reiner was manufacturing an additional 2.4
grams of methamphetamine, for a sum of 3.1 grams. Reiner claims that his trial counsel
was ineffective for failing to raise a competency objection to the detective’s yield rate
testimony; failing to present evidence challenging the reliability of yield rate evidence in
general; and failing to move for a directed verdict on the Class A felony charge on the
basis of insufficient evidence as to the amount of methamphetamine being manufactured.
Reiner also claims that his appellate counsel was ineffective for failing to challenge the
sufficiency of the State’s evidence as to the amount of methamphetamine being
manufactured. Concluding that neither counsel was ineffective, we affirm.
FACTS AND PROCEDURAL HISTORY
The underlying facts of this case were set forth in this court’s memorandum
decision on Reiner’s direct appeal:
[A]t 10:45 p.m. on February 7, 2008, Elkhart County Deputy Sheriffs
Adam Leeper and Evan Witt, along with Sergeant Michael Lee McHenry,
responded to a dispatch reporting the possible existence of a meth lab at
27415 County Line Road 24. When the officers arrived at the residence,
2
they observed three vehicles, including a white Ford Thunderbird later
confirmed to belong to Reiner. They noticed a strong odor of ether coming
from the open windows of the house. Shortly thereafter, a woman emerged
from the house, and Sergeant McHenry and Officer Leeper immediately
apprehended her. She identified herself as the homeowner [Jerikay Delater]
and gave consent to a search of the premises.
When the officers entered the residence, they observed a thick haze
and smelled a very strong odor of chemicals associated with the
manufacturing of meth. They also observed lithium batteries, ammonium
sulfate, lye, a glass pipe, aluminum foil, coffee filters, salts, plastic
containers and baggies, Coleman fuel, and other articles associated with the
manufacturing of meth. An Indiana State Police Lab Team searched the
premises and found additional items including pseudoephedrine, sulfuric
acid, soiled coffee filters, homemade cardboard funnels, a propane burner,
soda bottles containing white sludge, and cups and bowls containing white
and red crushed powder. Lab tests confirmed the presence of meth. The
officers found three men in the house: Joseph Moore, Justin Feathers, and
Reiner. When they found Reiner, he was standing in the laundry room with
his hand on a plastic bottle that contained a chemical and had a tube
attached to the top. An expert confirmed that the bottle was an HCL
generator, a device used in the production of meth.
The officers arrested Reiner at the scene, and on February 11, 2008,
the State charged him with class A felony dealing in
methamphetamine.[1]…
Reiner v. State, Cause No. 20A05-0907-CR-375, slip op. at 1 (Dec. 17, 2009). Indiana
Code section 35-48-4-1.1(a) provides that “[a] person who knowingly or intentionally
manufactures … methamphetamine, pure or adulterated … commits dealing in
methamphetamine, a Class B felony.” “The offense is a Class A felony if the amount of
the drug involved weighs three (3) grams or more….” Ind. Code § 35-48-4-1.1(b).
Reiner’s jury trial began on March 23, 2009. The State presented evidence that,
inside the residence, police found 0.7 grams of finished methamphetamine, a bowl of
white powder containing 2.66 grams of pseudoephedrine, and a variety of empty blister
packs that would have contained 14.1 grams of ephedrine or pseudoephedrine pills.
1
Ind. Code § 35-48-4-1.1(b)(1) (2008).
3
Indiana State Police (“ISP”) Detective Aaron Campbell testified that the maximum yield
rate from the conversion of pseudoephedrine to methamphetamine “[is] like 92 to 93
percent.” Trial Tr. p. 355. Detective Campbell further testified that “on average”
clandestine laboratories yield methamphetamine at a 60 to 70 percent rate. Trial Tr. p.
356. Applying a 90 percent yield rate to the 2.66 grams of pseudoephedrine found at the
residence, the State argued that Reiner was manufacturing 2.4 grams of
methamphetamine in addition to the 0.7 grams that had already been produced—a sum of
3.1 grams.
Reiner did not challenge the sufficiency of the State’s evidence as to the amount of
methamphetamine being manufactured. Rather, he argued that he was not involved in the
manufacturing of methamphetamine, had no association with the clandestine laboratory,
and was merely present at the residence when police arrived. In support of this defense,
Reiner presented the testimony of Feathers, who admitted that he and Delater made and
consumed methamphetamine at Delater’s residence on the night in question. Afterward,
Feathers called Reiner and asked Reiner to pick up him and Moore so that the three men
could go to a bar. When Reiner arrived, Feathers invited him inside the residence to wait
while Moore finished drinking a beer. The police arrived while Reiner was waiting
inside. Reiner also testified at trial, claiming that he had been at the residence for no
more than ten minutes before the police arrived. The State challenged Reiner’s defense
with the testimony of Delater’s brother, Thomas Kerns. Kerns testified that he saw
Reiner’s vehicle parked in front of Delater’s residence at approximately 9:00 p.m. on the
night in question, nearly two hours before police arrived.
4
On March 25, 2009, the jury found Reiner guilty as charged, and the trial court
sentenced him to thirty years of incarceration. Reiner filed a direct appeal, arguing that
the evidence was insufficient to sustain his conviction because he was not involved in the
manufacturing of methamphetamine and was merely present at the residence when police
arrived. On December 17, 2009, this Court issued its memorandum decision affirming
the trial court’s judgment.
Reiner’s actions during the commission of the crime support his conviction
for dealing in meth. When the officers found him, he was in possession of
meth paraphernalia and was venting the HCL generator. Moreover, to the
extent he argues that he had arrived just moments before police and that he
came to the house merely to give Feathers a ride, we note eyewitness
Kerns’s testimony that he observed Reiner’s “T-bird” parked out front at
9:00 p.m., nearly two hours before police arrived.
Reiner, slip op. at 2.
Reiner, pro se, filed a petition for post-conviction relief (“PCR”) on February 24,
2011. On September 2, 2011, Reiner, by counsel, filed an amended PCR petition,
alleging that both his trial and appellate counsel were ineffective. The post-conviction
court held an evidentiary hearing on February 28, 2012, at which, Reiner’s trial counsel,
Thomas Leatherman; his appellate counsel, Marielena Duerring; and ISP forensic
scientist Hailey Newton testified.
Trial counsel testified that he received the ISP’s lab report prior to trial and that he
was aware that the amount of finished methamphetamine found at the residence was 0.7
grams. Trial counsel further testified that he did not have an understanding of or
experience with yield rates and was not aware prior to trial that the State would use yield
rate evidence to prove the weight element of the Class A felony charge. Trial counsel
5
also testified that it was a tactical approach to argue that Reiner was not involved in the
manufacturing of methamphetamine and was merely present at the residence. Trial
counsel did not consider objecting to Detective Campbell’s yield rate testimony because
he was focused on this “merely present” defense. According to trial counsel, “[I]t didn’t
matter how much [methamphetamine] was there, [Reiner] wasn’t involved in the
manufacture.” PCR Tr. p. 79. Trial counsel, however, did consider challenging the
sufficiency of the State’s evidence as to the amount of methamphetamine being
manufactured, but believed such an argument would have contradicted Reiner’s “merely
present” defense. Trial counsel admitted that it would have been a “good argument” to
move for a directed verdict to reduce the charge from a Class A to a Class B felony, PCR
Tr. p. 80, explaining that this would not have compromised Reiner’s “merely present”
defense because the motion would have been made to the judge without the jury’s
knowledge.
Appellate counsel testified that she did not consider challenging the sufficiency of
the State’s evidence as to the amount of methamphetamine being manufactured because
the amount of finished methamphetamine coupled with the amount of other material
found at the residence indicated that the lab had the potential to produce in excess of 3.0
grams. Appellate Counsel also testified that, at the time she represented Reiner, she
believed that yield rate evidence was sufficient to prove the weight element of Class A
felony dealing in methamphetamine.
Newton testified that, while the maximum yield rate from the conversion of
pseudoephedrine to methamphetamine is 92 percent, the actual yield rate depends on
6
various factors. These include the purity of the precursor—i.e., the amount of
pseudoephedrine in a pill—the cook’s experience, and the recipe being used. Newton
further testified that lab analysts apply the yield rate to the amount of pure
pseudoephedrine, not the weight of a pill. Therefore, Newton added, she could not
calculate the yield rate of the white powder found at the residence without knowing the
amount of pseudoephedrine it contained. She would, however, expect the rate to be
much lower than the maximum because of other ingredients in the substance.
The court questioned the relevancy of Newton’s testimony concerning
pseudoephedrine purity, and the State similarly objected on the ground that Indiana law
contemplates a “pure or adulterated” drug in its dealing in methamphetamine statute. The
court sustained this objection but allowed Newton’s testimony as an offer of proof. In the
offer of proof, Newton testified that the yield rate in a clandestine laboratory is generally
30 to 50 percent. And even in a police laboratory, the yield rate can vary from 80 to 90
percent. After cross-examination, Reiner moved to have Newton’s testimony admitted
into evidence, which motion the post-conviction court denied. On September 10, 2012,
the court issued its findings of fact and conclusions of law, denying Reiner’s PCR
petition.
DISCUSSION AND DECISION
PCR Standard of Review
Our standard for reviewing the denial of a PCR petition is well-settled:
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-
7
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.
Hall v. State, 849 N.E.2d 466, 468-69 (Ind. 2006) (internal citations and quotation marks
omitted).
I. Whether Reiner Received Ineffective Assistance of Trial Counsel
We review claims of ineffective assistance of counsel based on the two-pronged
standard announced 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). Because an inability to satisfy either prong of this test is fatal to an ineffective
assistance claim, we need not evaluate counsel’s performance if the claimant suffered no
prejudice from that performance. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind.
1999).
A. Failure to Object
Reiner claims that his trial counsel was ineffective for failing to object to the
admission of Detective Campbell’s yield rate testimony. “‘To prevail on a claim of
ineffective assistance due to the failure to object, the defendant must show an objection
8
would have been sustained if made.’” Benefield v. State, 945 N.E.2d 791, 799 (Ind. Ct.
App. 2011) (quoting Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007)). Reiner
contends that Detective Campbell’s yield rate testimony was inadmissible as that of an
expert witness under Indiana Evidence Rule 702 because the State failed to demonstrate
the reliability of the scientific principles upon which the testimony was based. We find
Detective Campbell’s testimony to have been admissible as that of a “skilled witness”
under Rule 701 and, therefore, conclude that Reiner’s claim is without merit.
A skilled witness is one who has “‘a degree of knowledge short of that sufficient
to be declared an expert under Rule 702, but somewhat beyond that possessed by the
ordinary jurors.’” Linton v. Davis, 887 N.E.2d 960, 975 (Ind. Ct. App. 2008) (quoting
Mariscal v. State, 687 N.E.2d 378, 380 (Ind. Ct. App. 1997)), trans. denied. “Skilled
witnesses not only can testify about their observations, they can also testify to opinions or
inferences that are based solely on facts within their own personal knowledge.” Id.
Notably, a police officer’s experience and training may provide the requisite foundation
under Rule 701. See Stephenson v. State, 742 N.E.2d 463, 480 (Ind. 2001).
At trial, Detective Campbell identified himself as an officer with the ISP
Methamphetamine Suppression Section who has investigated 168 clandestine
laboratories. Detective Campbell added that, to qualify for his position, he underwent a
forty-hour certification in dismantling clandestine laboratories, a credential for which he
is recertified annually. Given this experience and training, a competency objection to
Detective Campbell’s testimony would not have been sustained, causing Reiner to suffer
no prejudice from trial counsel’s failure to object.
9
The dissent argues that Detective Campbell’s yield rate testimony fell outside the
scope of Rule 701 because it was scientific in nature, and that it was inadmissible under
Rule 702 because the State failed to establish the reliability of the scientific principles on
which the testimony was based. We do not find that this analysis carries the day given
the facts and claims of this particular case. Since Reiner was convicted in 2009, this
court has reviewed three cases where an ISP officer’s yield rate testimony was offered to
prove the weight element of a Class A felony dealing in methamphetamine charge:
Halferty v. State, 930 N.E.2d 1149 (Ind. Ct. App. 2010), trans. denied; Fancil v. State,
966 N.E.2d 700 (Ind. Ct. App. 2012), trans. denied; and Clark v. State, 977 N.E.2d 459,
463 (Ind. Ct. App. 2012), trans. granted, opinion vacated, 980 N.E.2d 325 (Ind. 2013).
In each, the trial court had admitted the testimony as that of a skilled witness under Rule
701 and over the defendant’s Rule 702 objection.
In both Halferty and Fancil, we “assumed without deciding” that the trial court did
not abuse its discretion in admitting the yield rate testimony under Rule 701. Halferty,
930 N.E.2d at 1153; Fancil, 966 N.E.2d at 706. And in Clark,2 we held that the trial
court did not abuse its discretion in allowing the yield rate testimony over a Rule 702
objection. Clark, 977 N.E.2d at 463. Given that the admissibility of yield rate testimony
under Rule 701 remained undecided in 2010, one year after Reiner was convicted, and
that it was decided in favor of admission in 2012, three years after his conviction, we
cannot say that Reiner’s trial counsel was deficient for failing to object to the admission
2
In light of the Indiana Supreme Court’s recent grant of transfer in the case of Clark v. State, 977
N.E.2d 459 (Ind. Ct. App. 2012), we emphasize that our reliance on that now-vacated decision is limited
to the issue of what was professionally reasonable at the time of Reiner’s trial in 2009.
10
of Detective Campbell’s yield rate testimony in 2009. We also note that “failure to object
is not ineffective assistance of counsel ‘if counsel’s failure to object was the result of trial
strategy.’” Charlton v. State, 702 N.E.2d 1045, 1051 (Ind. 1998) (quoting Potter v. State,
684 N.E.2d 1127, 1133 (Ind. 1997)). As we discuss in more detail below, not objecting
to the State’s yield rate evidence was consistent with Reiner “merely present” defense.
B. Failure to Impeach
Reiner claims that his trial counsel was ineffective for failing to impeach Detective
Campbell’s yield rate testimony and to present evidence challenging the reliability of
yield rate evidence in general. Our review of the record, however, reveals that the
absence of such evidence is consistent with trial counsel’s defense strategy for Reiner.
“We afford great deference to counsel’s discretion to choose strategy and tactics, and
strongly presume that counsel provided adequate assistance and exercised reasonable
professional judgment in all significant decisions.” McCary v. State, 761 N.E.2d 389,
392 (Ind. 2002) (citing Strickland, 466 U.S. at 689-90).
At Reiner’s post-conviction hearing, trial counsel testified that the tactical
approach to Reiner’s defense was to argue that Reiner was not involved in the
manufacturing of methamphetamine and was merely present at the residence when police
arrived. Trial counsel considered challenging the sufficiency of the State’s evidence as to
the amount of methamphetamine being manufactured, but chose not to focus on it.
According to trial counsel, “[I]t didn’t matter how much [methamphetamine] was there,
[Reiner] wasn’t involved in the manufacture.” PCR Tr. p. 79. Moreover, trial counsel
testified that challenging the sufficiency of the State’s evidence as to the amount of
11
methamphetamine being manufactured would have contradicted Reiner’s “merely
present” defense. See Timberlake v. State, 753 N.E.2d 591, 606 (Ind. 2001) (concluding
that trial counsel’s decision not to pursue an alternative defense was a reasonable
professional decision to avoid seemingly inconsistent defenses). In light of trial
counsel’s chosen defense strategy, his failure to impeach Detective Campbell’s testimony
and to otherwise challenge the State’s yield rate evidence was not deficient.
C. Failure to Move for Directed Verdict
Reiner claims that his trial counsel was ineffective for failing to move for a
directed verdict as to the Class A felony charge after the State allegedly failed to prove
the weight element of that crime beyond a reasonable doubt. It has been held generally
that “failure of trial counsel to move for a directed verdict does not create sufficient
prejudice to result in a finding of ineffective assistance of counsel.” Siglar v. State, 541
N.E.2d 944, 948 (Ind. 1989); accord Robles v. State, 612 N.E.2d 196, 198 (Ind. Ct. App.
1993) (citing Hunter v. State, 578 N.E.2d 353, 357 (Ind. 1991)); see Gajdos v. State, 462
N.E.2d 1017, 1024 (Ind. 1984). Moreover, a directed verdict is appropriate only if there
is “a total absence of evidence as to the guilt of the accused or where there is no conflict
in the evidence and it is susceptible only to an inference in favor of the accused.” State v.
Casada, 825 N.E.2d 936, 938-39 (Ind. Ct. App. 2005).
Here, the State presented Detective Campbell’s testimony that the maximum yield
rate from the conversion of pseudoephedrine to methamphetamine “[is] like 92 to 93
percent.” Trial Tr. p. 355. From this, the State asserted that, at a 90 percent rate, the 2.66
grams of pseudoephedrine found at the residence would have yielded 2.4 grams of
12
methamphetamine. Combining this amount with the 0.7 grams of finished
methamphetamine found at the residence, the State presented a prima facie case that
Reiner was manufacturing 3.0 or more grams of the drug.
Reiner contends that a directed verdict would have been granted because yield rate
evidence is insufficient to prove the weight element of Class A felony dealing in
methamphetamine. Reiner relies on our decisions in Halferty and Fancil, in which we
held that a police officer’s use of general terms to describe the yield rate from the
conversion of pseudoephedrine to methamphetamine renders the officer’s testimony
insufficient to prove the weight element of Class A felony dealing in methamphetamine
beyond a reasonable doubt. See e.g., Halferty, 930 N.E.2d at 1154 (Officer testified that
the yield rate was “in general,” “usually,” or “about” 70 to 80 percent.). These cases,
however, were decided after Reiner’s conviction in 2009 and are therefore inapplicable to
the instant matter. “For purposes of ineffective assistance of counsel claims, the law
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) (citing Gann v. State, 550 N.E.2d 73, 75 (Ind. 1990)), trans. denied.
Reiner also relies on the Indiana Supreme Court’s decision in Halsema v. State,
823 N.E.2d 669 (Ind. 2005). There, the court held:
[I]n order to prove the element of weight of drugs or controlled substances
the State must either offer evidence of its actual, measured weight or
demonstrate that the quantity of the drugs or controlled substances is so
large as to permit a reasonable inference that the element of weight has
been established.
13
Halsema, 823 N.E.2d at 674.3 Reiner contends that the State’s yield rate evidence does
not prove the “actual, measured weight” of methamphetamine. But Indiana law “does
not require that the [manufacturing] process be completed or that there actually be a final
product before the [dealing in methamphetamine] statute applies.” Traylor v. State, 817
N.E.2d 611, 619 (Ind. Ct. App. 2004) (finding liquid containing pseudoephedrine and
weighing more than 3.0 grams sufficient to prove Class A felony dealing in
methamphetamine), trans. denied; see Bush v. State, 772 N.E.2d 1020 (Ind. Ct. App.
2002). Given the legal precedent available at the time of trial counsel’s representation of
Reiner, we conclude that a directed verdict on the Class A felony charge would have been
inappropriate and, therefore, that Reiner suffered no prejudice.
II. Whether Reiner Received Ineffective Assistance of Appellate Counsel
We review claims of ineffective assistance of appellate counsel using the same
two-pronged test applicable to claims of trial counsel ineffectiveness. Ben-Yisrayl, 729
N.E.2d at 106. The claimant must show that counsel was deficient in his performance
and that the deficiency resulted in prejudice. Id. Reiner argues that his appellate counsel
was ineffective for failing to challenge the sufficiency of the State’s evidence as to the
amount of methamphetamine being manufactured.
Ineffective assistance claims at the appellate level generally fall into three basic
categories: (1) denial of access to an appeal; (2) waiver of issues; and (3) failure to
present issues well. Bieghler v. State, 690 N.E.2d 188, 193-94 (Ind. 1997). Reiner’s
3
The issue presented in Halsema was whether jurors, having been presented with no evidence
concerning the weight of a bag containing methamphetamine, could examine the bag and “use their
common sense and experience” to determine whether the methamphetamine weighed at least three grams.
Halsema v. State, 823 N.E.2d 669, 673 (Ind. 2005).
14
claim falls into the second category, for which we have noted the need for a reviewing
court to be deferential to appellate counsel:
[T]he reviewing court should be particularly sensitive to the need for
separating the wheat from the chaff in appellate advocacy, and should not
find deficient performance when counsel’s choice of some issues over
others was reasonable in light of the facts of the case and the precedent
available to counsel when that choice was made.
Timberlake, 753 N.E.2d at 605 (quoting Bieghler, 690 N.E.2d at 194). Put simply, “[a]
defendant may establish that his appellate counsel’s performance was deficient where
counsel failed to present a significant and obvious issue for reasons that cannot be
explained by any strategic decision.” Ben-Yisrayl, 738 N.E.2d at 261.
At his post-conviction hearing, Reiner’s appellate counsel testified that she did not
argue that the State presented insufficient evidence because the amount of finished
methamphetamine coupled with the amount of other material found at the residence
indicated that the lab had the potential to produce in excess of 3.0 grams. Moreover, she
stated that, at the time she represented Reiner, she believed that yield rate evidence was
sufficient to prove the weight element of the Class A felony charge.
Here, Reiner again relies on our decision in Halferty. But like trial counsel,
“[a]ppellate counsel cannot be held ineffective for failing to anticipate or effectuate a
change in the existing law.” Donnegan v. State, 889 N.E.2d 886, 893 (Ind. Ct. App.
2008), trans. denied. Because Halferty was decided after Reiner’s conviction in 2009, it
is inapplicable to the instant matter. Reiner also claims that appellate counsel could have
relied on Halsema to challenge the State’s use of yield rate evidence to prove the amount
of methamphetamine being manufactured. But, as explained above, it was reasonable for
15
appellate counsel to conclude that the State’s yield rate evidence was sufficient given the
case law at that time. See Traylor, 817 N.E.2d at 619, 621. Appellate counsel did not
provide Reiner ineffective assistance.
III. Admissibility of Newton Testimony
In addition to his ineffective assistance claims, Reiner argues that the post-
conviction court abused its discretion in not admitting ISP forensic scientist Newton’s
testimony regarding pseudoephedrine purity and the unreliability of yield rate evidence.
Reiner claims that this evidence was admissible to prove prejudice resulting from his trial
counsel’s failure to impeach Detective Campbell’s yield rate testimony. However,
having already held that Reiner’s trial counsel was not deficient for failing to present
evidence challenging the reliability of Detective Campbell’s testimony and yield rate
evidence in general, we conclude that Reiner was not prejudiced by the post-conviction
court’s exclusion of Newton’s testimony. Even assuming the court abused its discretion,
that error was harmless under Ind. Trial Rule 61.
The judgment of the post-conviction court is affirmed.
RILEY, J., concurs.
BROWN, J., dissents with opinion.
16
IN THE
COURT OF APPEALS OF INDIANA
JONATHAN REINER, )
)
Appellant-Petitioner, )
)
vs. ) No. 20A05-1210-PC-499
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
BROWN, Judge, dissenting
I respectfully dissent from the majority’s holding that Reiner did not receive
ineffective assistance of trial counsel and appellate counsel.
The majority notes that, at Reiner’s jury trial, the State presented evidence that the
police found 0.7 grams of finished methamphetamine and 2.66 grams of
pseudoephedrine. Detective Campbell testified that the maximum yield rate from the
conversion of pseudoephedrine to methamphetamine is “like 92 to 93 percent” and that
“on average” clandestine laboratories yield methamphetamine at a 60 to 70 percent rate.
Slip op. at 4 (citing Trial Transcript at 355-356). The State argued, applying a ninety-
percent yield rate to the 2.66 grams of pseudoephedrine found at the residence, that
Reiner was manufacturing 2.4 grams of methamphetamine in addition to the 0.7 grams
17
that had already been produced for a total of 3.1 grams.
The majority further notes that Reiner’s trial counsel testified at the post-
conviction hearing that he did not have an understanding of or experience with yield rates
and was not aware prior to trial that the State would use yield rate evidence to prove the
weight element of the class A felony charge. Also, the majority notes that Reiner’s
appellate counsel testified that she did not consider challenging the State’s evidence as to
the amount of methamphetamine being manufactured. At the post-conviction hearing,
Reiner presented the testimony of a forensic scientist who testified that the actual yield
rate from the conversion of pseudoephedrine to methamphetamine depends on various
factors including the purity of the precursor, the cook’s experience, and the recipe being
used, that lab analysts apply the yield rate to the amount of pure pseudoephedrine, and
that the yield rate in a clandestine laboratory is generally thirty to fifty percent and even
in a police laboratory can vary from eighty to ninety percent.
Reiner claims that his trial counsel was ineffective for failing to object to the
admission of the conversion ratio or yield rate evidence, to impeach that evidence, and to
challenge the sufficiency of the evidence to support his class A felony conviction and that
his appellate counsel was ineffective for failing to challenge the conversion evidence on
appeal. The majority finds that Detective Campbell’s testimony was admissible as that of
a skilled witness under Ind. Evidence Rule 701 and that therefore Reiner’s claim is
without merit. Specifically, the majority notes that Detective Campbell testified that he
had investigated 168 clandestine laboratories and had undergone a forty-hour certification
in dismantling clandestine laboratories.
18
1. Failure to Challenge the Admissibility of the Evidence
To the extent Reiner argues that his trial counsel was ineffective for failing to
challenge the admissibility of Detective Campbell’s testimony regarding yield rates, Ind.
Evidence Rule 701 provides:
If the witness is not testifying as an expert, the witness’s testimony in the
form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness’s testimony or the
determination of a fact at issue.
This court has noted that a skilled witness is one who has a degree of knowledge short of
that sufficient to be declared an expert under Rule 702 but somewhat beyond that
possessed by the ordinary jurors. Mariscal v. State, 687 N.E.2d 378, 380 (Ind. Ct. App.
1997), reh’g denied, trans. denied.
In addition, Ind. Evidence Rule 702 provides:
(a) If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied
that the scientific principles upon which the expert testimony rests
are reliable.
In cases governed by Rule 702, Indiana courts assess the reliability of expert
scientific evidence by considering the factors set forth in Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), with regard to the analogous federal
evidence rule.4 Mogg v. State, 918 N.E.2d 750, 756 (Ind. Ct. App. 2009). The Daubert
4
The Indiana Supreme Court has explained:
19
factors include whether the scientific theory or technique (1) can be and has been tested;
(2) has been subjected to peer review and publication; (3) has a known or potential error
rate; (4) is governed by maintained standards controlling its operation; and (5) has gained
widespread acceptance in a relevant scientific community. Id. (citing 509 U.S. at 593-
594; Burnett v. State, 815 N.E.2d 201, 206 (Ind. Ct. App. 2004) (noting this list of factors
is “non-exclusive”), reh’g denied). Although all of these factors and others may be
relevant, none is by itself dispositive, and not all need be present for a trial court to find
the proffered evidence rests upon reliable principles. Id. (citing McGrew v. State, 682
N.E.2d 1289, 1292 (Ind. 1997)). However, the proponent of the expert scientific
testimony bears the burden of persuading the trial court it is more likely than not that the
scientific principles upon which the testimony rests are reliable. Id. (citing Burnett, 815
N.E.2d at 206).
In addition, this court has stated that “[q]ualification under Rule 702 (and hence
designation as an expert) is only required if the witness’s opinion is based on information
received from others pursuant to [Indiana Evidence] Rule 703 or on a hypothetical
question.” Farrell v. Littell, 790 N.E.2d 612, 617 (Ind. Ct. App. 2003) (quoting 13
ROBERT LOWELL MILLER, JR., INDIANA EVIDENCE § 701.105 at 321 (2d 1995)). “The
The concerns driving Daubert [interpreting Federal Rule of Evidence 702]
coincide with the express requirement of Indiana Rule of Evidence 702(b)
that the trial court be satisfied of the reliability of the scientific principles
involved. Thus, although not binding upon the determination of state
evidentiary law issues, the federal evidence law of Daubert and its progeny
is helpful to the bench and bar in applying Indiana Rule of Evidence
702(b).
Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995).
20
testimony of an observer, skilled in an art or possessing knowledge beyond the ken of the
average juror may be nothing more than a report of what the witness observed, and
therefore, admissible as lay testimony,” and “[t]his type of evidence is not a matter of
‘scientific principles’ governed by Indiana Evidence Rule 702(b); rather, it is a matter of
the observations of persons with specialized knowledge.” Id.
While a police officer may give skilled witness testimony based on his or her
observations and experience, including in connection with his or her experience with the
cleanup of clandestine methamphetamine laboratories, the officer is nevertheless
prohibited from testifying as to scientific or technical principles. In this case, while
Detective Campbell may have had experience qualifying him to testify as a skilled
witness, his specific testimony regarding maximum and average conversion ratios and
yield rates is information that is scientific or technical in nature. Only an expert witness
is permitted to testify regarding scientific, technical, or other specialized knowledge.
Detective Campbell was not qualified as an expert witness under Ind. Evidence Rule 702
to testify as to any scientific or technical principles or methodology used to reach his
conclusion. Under the evidentiary rules pertaining to expert and skilled witnesses, the
admission of testimony regarding the determination of the yield rate from the conversion
of pseudoephedrine to methamphetamine under various circumstances is a determination
which requires expert scientific or technical testimony. See Hape v. State, 903 N.E.2d
977, 992-993 (Ind. Ct. App. 2009) (finding that an officer’s testimony regarding “dose
and dealing amounts” and “the relationship between quantity [of methamphetamine] and
personal use” was properly admitted as that of a skilled witness because it was rationally
21
based upon the officer’s observation of the drugs in light of his experience, but also
finding that the officer’s testimony regarding “how much methamphetamine it takes for a
person to get high” was improperly admitted because such information “is scientific in
nature,” only an expert witness is permitted to testify regarding scientific knowledge, and
the officer “did not testify as to any scientific principles or methodology used to reach his
conclusion,” and thus holding that “under the evidentiary rules pertaining to expert and
skilled witnesses, the admission of testimony regarding the amount of methamphetamine
necessary to create a high was improper”), trans. denied; cf. Davis v. State, 791 N.E.2d
266, 269 (Ind. Ct. App. 2003) (noting that an officer with experience investigating
narcotics crimes was qualified to testify as a skilled witness regarding the packaging and
amounts of cocaine related to dealing), reh’g denied, trans. denied. Reiner’s trial counsel
failed to challenge the admissibility of the conversion ratio or yield rate testimony under
Ind. Evidence Rules 702 or 701 and, with respect to Evidence Rule 702, to argue that the
State failed to demonstrate the reliability of the scientific principles upon which the
testimony was based. This failure by Reiner’s trial counsel to challenge the admissibility
of the evidence used to support the weight element of the class A felony charge and the
enhancement from a class B to a class A felony fell below an objective standard of
reasonableness which undermines confidence in the outcome.
The majority observes that this court’s opinions in Halferty v. State, 930 N.E.2d
1149, 1151 (Ind. Ct. App. 2010), reh’g denied, trans. denied; Fancil v. State, 966 N.E.2d
700, 703 (Ind. Ct. App. 2012), trans. denied; and Clark v. State, 977 N.E.2d 459 (Ind. Ct.
App. 2012), trans. granted, opinion vacated (Ind. Jan. 4, 2013), each discussed in more
22
detail in Part 2 below relating to the failure of Reiner’s trial counsel to challenge the
sufficiency of the evidence in support of the enhancement, were decided after Reiner’s
conviction; that the Halferty and Fancil opinions assumed without deciding that the trial
court did not abuse its discretion in admitting certain yield rate testimony under Trial
Rule 701; that Clark, while the opinion has since been vacated, held that the trial court
did not abuse its discretion in allowing yield rate testimony over a Trial Rule 702
objection;5 and that the failure of Reiner’s counsel to object to the State’s yield rate
evidence was consistent with Reiner’s “merely present” defense. I note that the fact that
this court’s opinions in Halferty, Fancil, and Clark were issued after Reiner’s conviction
does not necessarily mean that the conversion ratio or yield rate evidence introduced by
the State in this case was admissible under Trial Rules 701 or 702 absent a demonstration
that Detective Campbell qualified as an expert witness or that Reiner’s counsel was
relieved of the obligation to challenge the testimony based upon the established rules of
evidence.6 Neither Halferty nor Fancil expressly addressed the issue, and this court’s
5
In Clark, this court found that the trial court did not abuse its discretion in allowing a police
officer to testify under Ind. Evidence Rule 701. 977 N.E.2d at 463.
6
In the context of a claim of ineffective assistance of appellate counsel related to an alleged
failure to raise a sentencing issue of first impression, the Indiana Supreme Court in Reed v. State made
the following comments:
It is certainly true that appellate counsel cannot be held ineffective for failing to
anticipate or effectuate a change in existing law. And it is equally true that an ineffective
assistance claim cannot be based upon counsel’s failure to argue legal reasoning of cases
not yet decided at the time of appeal. But failing to raise an issue of first impression
where a plain reading of the statute demonstrated that Reed is entitled to immediate
relief—a reduction from eighty years in prison to fifty-five years—is sufficient to
demonstrate that this unraised issue was significant and obvious from the face of the
record. We agree with the observation of the Pennsylvania Supreme Court that “this
Court . . . has never relieved counsel of the obligation to vindicate his client’s interests
under existing statutory provisions.” Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d
23
opinion in Clark holding that yield rate evidence is admissible under Trial Rule 701 has
been vacated and the case transferred to the Indiana Supreme Court.
Moreover, in my view, there is no question that the conversion ratio or yield rate
testimony allowed into evidence by the trial court without any objection by Reiner’s trial
counsel is precisely the sort of evidence which requires scientific or technical expertise
under the Indiana Evidence Rules and Indiana case law as discussed above. In addition,
while Reiner’s trial counsel may have stated at the post-conviction hearing that he did not
consider objecting to the yield rate testimony because he was focused on a “merely
present” defense, I note that the conversion ratio evidence presented by the State
pertained solely to the alleged quantity of methamphetamine manufactured at the scene or
intended to be manufactured based upon the quantity of pseudoephedrine discovered at
the scene, that the evidence was pertinent only to the weight element of the class A
felony charge and the enhancement of the offense from a class B to a class A felony, and
that any objection or challenge to the conversion ratio or yield rate testimony would not
have undermined or compromised Reiner’s defense.
Accordingly, I would find that Reiner’s trial counsel provided ineffective
assistance in failing to challenge the yield rate testimony which was used to prove the
weight element of the class A felony charge.
761, 795 (2004) (finding “merit” to a claim that counsel rendered ineffective assistance
for failing to raise an issue on appeal even though no controlling decisional law existed at
the time of trial and appeal). See also Ex Parte Welch, 981 S.W.2d 183, 185 (Tex. Crim.
App. 1998) (finding ineffective assistance for counsel’s failure to raise on appeal a matter
of first impression declaring “it should have been evident from a plain reading of the
[applicable] statute itself” that defendant was entitled to relief).
856 N.E.2d 1189, 1197 (Ind. 2006) (certain citations omitted).
24
2. Failure to Challenge the Sufficiency of the Evidence
To the extent that Reiner argues his trial and appellate counsel provided
ineffective assistance by failing to challenge the sufficiency of the evidence supporting
his class A felony conviction, several opinions shed light on the evidence the State must
present in order to prove the quantity of drugs beyond a reasonable doubt where the
actual, measured weight of the drugs is not available.
In Halsema v. State, the Indiana Supreme Court addressed whether there was
sufficient evidence that the drugs seized from the residence weighed at least three grams
and noted that the weight of the drugs was an essential element of the offense and that as
with any other essential element it must be proven by the State beyond a reasonable
doubt. 823 N.E.2d 668, 673 (Ind. 2005). The Court noted that a juror’s ability to
determine the existence of a fact in issue based on his or her common sense and
experience is not unlimited. Id. at 674. The Court held that “in order to prove the
element of weight of drugs or controlled substances, the State must either offer evidence
of its actual, measured weight or demonstrate that the quantity of the drugs or controlled
substances is so large as to permit a reasonable inference that the element of weight has
been established.” Id. The Court concluded that the record did not support “the view that
the quantity of methamphetamine seized from the bedroom dresser drawer was so large
that the jury could infer that it weighed at least three grams” and, accordingly, reversed
the convictions for possession of methamphetamine as Class A felonies. Id. at 675.
In Harmon v. State, the State presented evidence establishing that the total weight
of crystallized methamphetamine recovered from the scene was 1.34 grams and presented
25
additional samples of liquid taken from several vessels, and a jury found Harmon guilty
of Class A felony dealing in methamphetamine by manufacturing. 971 N.E.2d 674,
675 (Ind. Ct. App. 2012), trans. denied. On appeal, this court noted that the State
presented no forensic evidence establishing the actual, measured weight of the contents
of the vessels. Id. at 678. The court discussed Halsema, acknowledged that the Court
“gave virtually no guidance as to just how much of a drug is required to establish that the
quantity is large enough to permit a reasonable inference that the weight element of a
drug offense has been satisfied absent evidence of the drug’s actual, measured weight,”
and held that the State had not presented sufficient evidence to prove that the quantity of
liquid methamphetamine base was so large as to permit a reasonable inference that the
weight element of the charge had been established, noting that the samples taken were
quite small. Id. at 679-680. The court found that “the State’s inference that Harmon
must have manufactured more than three grams of crystallized methamphetamine
stretches reason beyond its breaking point” and reduced his conviction for class A felony
dealing in methamphetamine to a class B felony. Id. at 681-682.
In Halferty v. State, Halferty was charged with dealing in methamphetamine as a
class A felony. 930 N.E.2d 1149, 1151 (Ind. Ct. App. 2010), reh’g denied, trans. denied.
At trial, a drug chemist testified that the weight of actual methamphetamine recovered
from the scene was .40 grams and that the weight of powdered
ephedrine/pseudoephedrine found at the scene was 4.61 grams. Id. at 1151. An Indiana
trooper testified that in general the conversion ratio between ephedrine/pseudoephedrine
to methamphetamine was “usually right around 70, 80 percent” and that one gram of
26
ephedrine/pseudoephedrine would produce “about” .70 or .80 grams of
methamphetamine, and in closing the State referred to the trooper’s conversion ratio as
support for the contention that, considering the yield of methamphetamine from 4.61
grams of ephedrine/pseudoephedrine plus the .40 grams of methamphetamine, Halferty
was manufacturing methamphetamine in an amount equal to or greater than three grams.
Id. Halferty was convicted as charged. Id.
On appeal, this court noted that, when questioned about the term “usually,” the
trooper testified that the ratio can change depending on the cooking process, on whether
pill binders are stripped from the ephedrine/pseudoephedrine, and on the person who is
“cooking” the methamphetamine, and the trooper also testified that, depending on the
cook, the ratio of ephedrine/pseudoephedrine to methamphetamine can “fall below 50
percent.” Id. at 1153. The court held that the trooper’s conversion ratio testimony was
the only evidence to support the contention that Halferty was producing the additional
2.60 grams of methamphetamine necessary for the class A felony conviction, that the
trooper testified that the yield could be as low as fifty percent, and that cooking the 4.61
grams of ephedrine/pseudoephedrine at a yield of fifty percent would create about 2.31
grams of methamphetamine, which was an amount that, even when added to the .40
grams of produced methamphetamine, would produce less than three grams. Id. at 1153-
1154. The court also held that the trooper testified that the conversion ratio was “in
general,” “usually,” or “about” seventy to eighty percent and that the use of these terms
does not constitute proof beyond a reasonable doubt. Id. at 1154. The court reduced
Halferty’s conviction for class A felony dealing in methamphetamine to a class B felony.
27
Id. at 1154.
In Fancil v. State, this court held that the State charged Fancil with dealing in three
or more grams of meth, and to prove that Fancil manufactured pseudoephedrine found at
his residence into three or more grams of meth, the State called a detective experienced in
meth manufacturing to testify regarding the conversion ratio of pseudoephedrine to meth.
Fancil v. State, 966 N.E.2d 700, 703 (Ind. Ct. App. 2012), trans. denied. The detective
testified that “you, could” use fifteen grams of pseudoephedrine to manufacture five
grams of meth. Id. The court noted that the detective processed 450 clandestine labs and
interviewed numerous “cooks” regarding their processes for manufacturing meth. Id. at
704. The detective testified at trial that, in lab settings, he achieved a pseudophedrine to
meth conversion ratio of about ninety percent and that Fancil was a more experienced
cook. Id. at 705. This court discussed the holding in Halferty and “similarly conclude[d]
that [the detective’s] testimony does not constitute proof beyond a reasonable doubt that
Fancil manufactured three or more grams of meth . . . as the State had charged.” Id. at
707. The court held that the general meth yield ratio presented by the State was “the sort
deemed insufficient” in Halferty and that the testimony was not proof beyond a
reasonable doubt that Fancil manufactured three or more grams of meth. Id. The court
reduced Fancil’s conviction for a class A felony dealing in meth to a class B felony. Id.
at 710.7
7
As noted by the majority, the Indiana Supreme Court has granted transfer in Clark v. State, in
which this court found that the trial court did not abuse its discretion in allowing a police officer to testify,
under Ind. Evidence Rule 701, that his experience, when he did cooks himself, was that the quantity of
methamphetamine after the HC1 phase was over fifty percent of the amount of pseudoephedrine. 977
N.E.2d 459 (Ind. Ct. App. 2012), trans. granted, opinion vacated (Ind. Jan. 4, 2013). The Court has not
28
Based upon the holdings and reasoning in Halferty and Fancil, Detective
Campbell’s testimony regarding the conversion ratio or yield rate from the conversion of
pseudoephedrine to methamphetamine does not constitute proof beyond a reasonable
doubt that Reiner manufactured three of more grams of methamphetamine. In order to
convict Reiner of the class A felony conviction, the State needed to show, considering the
yield of methamphetamine from 2.66 grams of pseudoephedrine and the fact that police
found 0.7 grams of finished methamphetamine, that Reiner was manufacturing
methamphetamine in an amount equal to or greater than three grams. In order to obtain
this result, the State was required to prove beyond a reasonable doubt that the conversion
ratio between pseudoephedrine to methamphetamine was approximately 86.47 percent.8
According to the majority, Detective Campbell testified that the maximum yield rate from
the conversion of pseudoephedrine to methamphetamine is “like 92 to 93 percent,” but
that “on average” clandestine laboratories yield methamphetamine at a 60 to 70 percent
rate. Slip op. at 4 (citing Trial Transcript at 355-356).
Similar to Halferty, where this court noted that the evidence showed that the yield
could be as low as fifty percent and that yield would create an amount of
methamphetamine that, even when added to the amount of produced methamphetamine,
totaled less than three grams, see Halferty, 930 N.E.2d at 1153-1154, in this case
Detective Campbell testified that on average clandestine laboratories yield
yet issued an opinion in Clark.
8
Applying a conversion ratio or yield rate of 86.47 percent to 2.66 grams of pseudoephedrine
produces approximately 2.3 grams of methamphetamine which, when added to the 0.7 grams of finished
methamphetamine found at the scene, equals approximately three grams.
29
methamphetamine at a sixty to seventy percent rate, and applying the yield rate of even
seventy percent would create about 1.862 grams of methamphetamine, which is an
amount that, when added to the 0.7 grams of finished methamphetamine, would produce
less than three grams of methamphetamine in total. As a result, under the holdings of
Halferty and Fancil, the testimony presented by the State does not constitute proof
beyond a reasonable doubt that Reiner manufactured or intended to manufacture three or
more grams of methamphetamine. The general conversion ratio or yield rate testimony
presented by the State in this case is the precise “sort deemed insufficient” in Fancil and
Halferty. See Fancil, 966 N.E.2d at 707.
The majority notes that Reiner’s trial counsel testified at the post-conviction
hearing that he did not have an understanding of or experience with yield rates and was
not aware prior to trial that the State would use yield rate evidence to prove the weight
element of the class A felony charge. In addition, Reiner’s counsel admitted that it would
have been a “good argument” to move for a directed verdict to reduce the charge from a
class A to a class B felony. Moreover, as noted in Part 1 above, the yield rate evidence
presented by the State pertained solely to the alleged quantity of methamphetamine
manufactured at the scene or intended to be manufactured based upon the quantity of
pseudoephedrine discovered at the scene, and thus the evidence was pertinent only to the
weight element of the class A felony charge and the enhancement of the offense from a
class B to a class A felony. As a result, a challenge to the sufficiency of or an attempt to
impeach the State’s yield rate evidence used to support the enhancement would not have
compromised or undermined Reiner’s “merely present” defense.
30
Even though the Halferty and Fancil opinions had not yet been issued at the time
of Reiner’s trial, I conclude that, at a minimum, the failure of Reiner’s trial counsel to
challenge or to attempt to impeach the conversion ratio or yield rate testimony or
challenge the evidence as insufficient to support the class A felony conviction fell below
an objective standard of reasonableness which undermines confidence in the outcome
based upon the Court’s statements in Halsema, the fact that conversion ratios or yield
rates could be much lower than 86.47 percent in a clandestine lab depending upon the
cook and other factors (and in fact Detective Campbell testified in part to that effect), and
the acknowledgement by Reiner’s trial counsel of the strength of the argument that the
evidence was insufficient to support the weight element of the class A felony charge and
the enhancement from a class B to a class A felony.
Moreover, the majority notes that Reiner’s appellate counsel testified that she did
not consider challenging the State’s evidence as to the amount of methamphetamine
being manufactured. The Court in Halsema concluded that the record did not support
“the view that the quantity of methamphetamine seized from the bedroom dresser drawer
was so large that the jury could infer that it weighed at least three grams” and,
accordingly, reversed the convictions for possession of methamphetamine as class A
felonies. 823 N.E.2d at 675. Reiner’s appellate counsel failed to raise an issue which
was significant and obvious from the information available in the trial record. See
Timberlake v. State, 753 N.E.2d 591, 606 (Ind. 2001) (stating that to prevail on a claim of
ineffective assistance of appellate counsel, a defendant must show from the information
available in the trial record or otherwise known to appellate counsel that appellate
31
counsel failed to present a significant and obvious issue and that this failure cannot be
explained by any reasonable strategy). Subsequent opinions from this court reversed
class A felony convictions which were premised on conversion ratio or yield rate
testimony which failed to show the weight of methamphetamine beyond a reasonable
doubt. Reiner received ineffective assistance of appellate counsel to the extent his
appellate counsel failed to challenge on appeal his class A felony conviction on the
grounds that the State failed to show the essential element of the weight of
methamphetamine manufactured as charged.
For the foregoing reasons, I would conclude that Reiner has demonstrated that he
received ineffective assistance of trial counsel for failure to challenge the admissibility of
the evidence regarding the yield rate from the conversion of pseudoephedrine to
methamphetamine, that he received ineffective assistance of trial and appellate counsel
for failure to challenge the evidence as insufficient to support the class A felony, and that
the post-conviction court erred in denying Reiner’s petition for post-conviction relief.
32