Everett Sweet v. State of Indiana , 2014 Ind. App. LEXIS 47 ( 2014 )

Feb 05 2014, 6:19 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEPHEN T. OWENS GREGORY F. ZOELLER
Public Defender of Indiana Attorney General of Indiana
DEIDRE R. ELTZROTH BRIAN REITZ
Assistant Chief Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
EVERETT SWEET, )
)
Appellant-Defendant, )
)
vs. ) No. 35A02-1305-PC-451
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON SUPERIOR COURT
The Honorable Jeffrey R. Heffelfinger, Judge
Cause No. 35D01-1004-PC-4
February 5, 2014
OPINION ON REHEARING – FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
The State petitions for rehearing following this court’s December 6, 2013, opinion,
in which we affirmed the post-conviction court’s denial of Sweet’s petition for post-
conviction relief. While the State prevailed in our original appeal, in its petition for
rehearing the State asserts that we mistakenly relied on our Supreme Court’s opinion in
Norris v. State, 896 N.E.2d 1149 (Ind. 2008), rather than our Supreme Court’s opinion in
Helton v. State, 907 N.E.2d 1020 (Ind. 2009). The State is correct. Norris involved a
petition for post-conviction relief filed pursuant to Indiana Post-Conviction Rule 1(a)(4),
whereas Helton, like Sweet’s appeal, involved a petition filed pursuant to Rule 1(a)(1).
Accordingly, we grant the State’s petition, vacate our prior opinion, and substitute our prior
opinion with this opinion on rehearing. We again affirm the post-conviction court’s denial
of Sweet’s petition for post-conviction relief.
FACTS AND PROCEDURAL HISTORY
On November 27, 2008, Sweet stayed the night at the home of Jason Weinley. The
next morning, Sweet “call[ed] around trying to find . . . fertilizer” and told Weinley he
needed fertilizer “[f]or making meth.” Motion to Suppress Transcript at 7-8. Weinley told
Sweet to leave, and Weinley gave Sweet a ride to a third party’s house. En route, Sweet
told Weinley that “he forgot his [backpack] on [Weinley’s] porch.” Id. at 8.
When he returned to his home, Weinley located Sweet’s backpack. Weinley “was
worried about what was in it because [he had] kids running around” and he “wanted to
make sure that it wasn’t stuffed with meth.” Id. at 9. Upon opening Sweet’s backpack,
Weinley discovered a mobile meth lab. Weinley called the Huntington Police Department.
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Detective Matt Hughes responded to Weinley’s call and learned that the State had
several active warrants for Sweet’s arrest. Detective Hughes set up surveillance a few
blocks from Weinley’s residence and observed Sweet return to pick up his backpack and
then drive away. Detective Hughes initiated a traffic stop and arrested Sweet pursuant to
the active arrest warrants. Detective Hughes observed Sweet’s backpack behind the
driver’s seat, and he seized and searched the backpack without a search warrant. Detective
Hughes confirmed Weinley’s initial report that the backpack was a mobile meth lab.
The State charged Sweet with dealing in methamphetamine, as a Class B felony;
attempted dealing in methamphetamine, as a Class B felony; and possession of drug
precursors, as a Class D felony. The State subsequently amended its information to
additionally allege that Sweet was an habitual offender. Sweet filed a motion to suppress
the evidence, in which he argued that Weinley was an agent of the Huntington Police
Department and, therefore, his search of Sweet’s backpack without a search warrant
violated Sweet’s rights under the Fourth Amendment to the United States Constitution and
Article I, Section 11 of the Indiana Constitution. At an ensuing evidentiary hearing,
Sweet’s counsel questioned one of the detectives involved in the investigation about
Weinley’s relationship with the Huntington Police Department, but he did not question
Weinley. The trial court denied Sweet’s motion to suppress.
Following the trial court’s denial of his motion to suppress, Sweet pleaded guilty to
dealing in methamphetamine, as a Class B felony. In exchange for his plea, the State
dismissed the remaining charges, including the habitual offender allegation. On August
25, 2009, the trial court held a guilty plea hearing, fully advised Sweet of his rights, and
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established the factual basis for Sweet’s plea of guilty. The court then accepted Sweet’s
plea agreement. Pursuant to the terms of Sweet’s plea agreement, the trial court sentenced
him to eighteen years. Sweet did not file a direct appeal.
On April 13, 2010, Sweet filed his petition for post-conviction relief, which he later
amended. In his amended petition, Sweet alleged that his trial counsel had rendered
ineffective assistance when he failed to question Weinley at the motion to suppress hearing
and that, if his counsel had properly examined Weinley, his counsel would have learned
that Weinley was a paid informant of the Huntington Police Department. Sweet then
alleged that this additional evidence would have compelled the trial court to grant his
motion to suppress the evidence, and that, with the State’s evidence suppressed, he would
not have pleaded guilty.
The post-conviction court held an evidentiary hearing on Sweet’s petition on March
19, 2013, after which the court entered findings of fact and conclusions of law denying the
petition. In particular, the post-conviction court found, in relevant part, as follows:
In order to prevail on this issue, Petitioner would have to show that he would
have prevailed on his Motion to Suppress Evidence if his counsel, Jeremy
Nix, had raised the issue of Jason Weinley being a paid informant, and thus
a police agent, when he conducted a warrantless search of the back pack.
Even though Mr. Nix did not question Mr. Weinley about being paid by the
police for the information he provided to the police about the Petitioner, it
would not have made a difference during the suppression hearing because
the evidence shows that Jason Weinley was not a police agent on November
28, 2008, when he conducted the search of the back pack.
***
What was not disclosed at the suppression hearing is that Jason
Weinley received $100 from the Huntington Police Department as a reward
for the information he provided approximately one to two weeks after
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November 28, 2008, and then another $200 after the Petitioner was
sentenced. Prior to November 28, 2008, Mr. Weinley had been paid for
working as a confidential informant for the Huntington Police Department in
late 2007 by assisting the police with controlled buys of narcotics. He did
not receive any money from the Huntington Police Department between late
2007 and December 2008, despite having provided the police with
information during that time period. The police did not discuss the
possibility of payment with Mr. Weinley at any time on November 28, 2008.
In order for a private citizen to be considered an agent of the police
for Fourth Amendment purposes, the government had to have known and
acquiesced to the search[,] and the private citizen’s purpose in conducting
the search is to assist law enforcement agents or to further his own ends.
Bone v. State, 771 N.E.2d 710, 714 (Ind. Ct. App. 2002). Also, simply being
paid for information in the past does not make him a police agent. Zupp v.
State, 283 N.E.2d 540 (Ind. 1972). Jason Weinley would not be considered
an agent of the police because the first prong of the Bone test is not met. The
police were unaware that Jason Weinley searched the Petitioner’s back pack
prior to him doing so, or that he even had access to the back pack.
Additionally, Jason Weinley testified at the suppression hearing that he
searched the back pack because he was concerned about what may have been
in the back pack since his children would have access to it.
The payments made to Jason Weinley by the Huntington Police
Department after the search do not make him a paid informant and thus does
not change the outcome of the hearing on the Motion to Suppress
Evidence. . . .
Petitioner has not shown an objectively reasonable probability that
competent representation would have caused the [P]etitioner not to enter a
plea. Petitioner has failed to demonstrate by a preponderance of the evidence
that he was denied the effective assistance of counsel during his plea of guilty
or the suppression hearing.
Appellant’s App. at 7-9. This appeal ensued.
DISCUSSION AND DECISION
Sweet appeals the post-conviction court’s denial of his petition for post-conviction
relief. Our standard of review is clear:
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[The petitioner] bore the burden of establishing the grounds for post-
conviction relief by a preponderance of the evidence. See Ind. Post-
Conviction Rule 1(5); Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).
Post-conviction procedures do not afford a petitioner with a super-appeal,
and not all issues are available. Timberlake, 753 N.E.2d at 597. Rather,
subsequent collateral challenges to convictions must be based on grounds
enumerated in the post-conviction rules. Id. If an issue was known and
available, but not raised on direct appeal, it is waived. Id. If it was raised on
appeal, but decided adversely, it is res judicata. Id.
In reviewing the judgment of a post-conviction court, appellate courts
consider only the evidence and reasonable inferences supporting the post-
conviction court’s judgment. Hall v. State, 849 N.E.2d 466, 468 (Ind. 2006).
The post-conviction court is the sole judge of the evidence and the credibility
of the witnesses. Id. at 468-69. Because he is now appealing from a negative
judgment, to the extent his appeal turns on factual issues [the petitioner] must
convince this court that the evidence as a whole leads unerringly and
unmistakably to a decision opposite that reached by the post-conviction
court. See Timberlake, 753 N.E.2d at 597. We will disturb the decision only
if the evidence is without conflict and leads only to a conclusion contrary to
the result of the post-conviction court. Id.
Lindsey v. State, 888 N.E.2d 319, 322 (Ind. Ct. App. 2008), trans. denied.
On appeal, Sweet argues that his trial counsel rendered ineffective assistance when
he failed to investigate Weinley’s relationship with the Huntington Police Department prior
to or during the motion to suppress hearing; that, if his counsel had properly investigated
this relationship, the State’s evidence would have been suppressed for having been seized
in violation of the Fourth Amendment to the United States Constitution;1 and that, because
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Although Sweet asserts that Weinley’s search violated his rights under both the federal and state
constitutions, Sweet does not separately explain how the facts of this case demonstrate a violation of the
Indiana Constitution. As such, “[a]ny claim of error under the Indiana Constitution is waived.” Dye v.
State, 717 N.E.2d 5, 13 n.7 (Ind. 1999). In any event, for the same reasons Sweet cannot demonstrate error
under the federal constitution he cannot demonstrate error under the Indiana Constitution. See, e.g., Sowers
v. State, 724 N.E.2d 588, 591-92 (Ind. 2000).
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of his counsel’s purported failure, Sweet did not enter into his guilty plea knowingly,
intelligently, and voluntarily. As our Supreme Court has explained:
To establish a claim of ineffective assistance of counsel, a defendant must
demonstrate that counsel performed deficiently and the deficiency resulted
in prejudice. Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008) (citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)). . . .
[The petitioner’s] claim is that his counsel’s failure to file a motion to
suppress was ineffective assistance of counsel. In order to prove prejudice
stemming from ineffective assistance, a defendant must show a reasonable
probability that, but for counsel’s unprofessional errors, the result of his
criminal proceeding would have been different. Strickland, 466 U.S. at 694,
104 S. Ct. [at] 2052. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. . . . A petitioner alleging
ineffective assistance of counsel in overlooking a defense leading to a guilty
plea must show a reasonable probability that, had the defense been raised,
the petitioner would not have pleaded guilty and would have succeeded at
trial.
Helton, 907 N.E.2d at 1023.
As we have explained:
“A search or seizure by a private party does not implicate the Fourth
Amendment.” U.S. v. Shahid, 117 F.3d 322, 325 (7th Cir. 1997), cert.
denied, 522 U.S. 902, 118 S. Ct. 254, 139 L. Ed. 2d 182. “However, the
Fourth Amendment does apply to a search or seizure by a party (even if
otherwise a private party) who is acting as an ‘instrument or agent’ of the
government.” Id. (citations omitted). Two “critical factors” in the
“instrument or agent” analysis are (1) whether the government knew of and
acquiesced in the intrusive conduct, and (2) whether the private party’s
purpose in conducting the search was to assist law enforcement agents or to
further its own ends. Id.Bone v. State, 771 N.E.2d 710, 714 (Ind. Ct. App. 2002). And our Supreme Court has
recognized that having acted as an informant in the past does not automatically make one
a State agent. See Zupp v. State, 258 Ind. 625, 628, 283 N.E.2d 540, 542 (1972).
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The premise underlying each of Sweet’s arguments on appeal is that Weinley was a
paid informant for, and thereby an agent of, the Huntington Police Department at the time
Weinley searched Sweet’s backpack, without a warrant, at Weinley’s residence. In
particular, Sweet asserts that Weinley had an on-going contractual relationship with the
Huntington Police Department and that Weinley was paid for the information he turned
over. We cannot agree with Sweet's characterization of the evidence before the post-
conviction court.
The evidence does not demonstrate that the State knew of and acquiesced in
Weinley’s search of Sweet’s backpack and that Weinley conducted that search in order to
assist law enforcement or to further his own ends. There is no evidence that Weinley was
in a contractual relationship with the Huntington Police Department at the time of the
November 28, 2008, search. The parties have stipulated that “no document currently exists
which memorializes the agreement” between the Huntington Police Department and
Weinley. Appellant’s App. at 38. Huntington Police Department Detective Chad Hacker
testified that, in 2007, Weinley had entered into an agreement wherein he would be paid to
participate in two controlled drug buys, and that that agreement had been completed shortly
thereafter. Post-Conviction Transcript at 37. Detective Hacker further testified that
Weinley did not enter into any subsequent contracts with the department and that the
department did not have any permanently paid confidential informants. Id. 37, 41. And
Detective Hacker testified that departmental records showed no payments to Weinley
between the completion of his 2007 contract and November 28, 2008, even though Weinley
had twice submitted information to the department in that time, and that Crime Stoppers,
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an organization that pays citizens for turning in information about crimes, paid Weinley
$200 following Sweet’s conviction. Id. at 44-45. Detective Hughes submitted an affidavit
in which he also stated that Weinley had not been paid for information following the
completion of the 2007 contract and that that contract did not include a provision for
Weinley to be paid for turning in information about illegal activity. Appellant’s App. at
11-12.
Weinley likewise testified before the post-conviction court that he had, on two
occasions between the completion of the 2007 contract and November 28, 2008, given law
enforcement information, but he had not been paid either time. Post-Conviction Transcript
at 76, 82-83. And Weinley testified that he had not been told he would be paid if he
searched Sweet’s bag on November 28, 2008. Id. at 79. Indeed, at the evidentiary hearing
on Sweet’s motion to suppress, Weinley testified that he did not search Sweet’s backpack
under the direction of an officer but because he “was worried about what was in it because
[he had] kids running around” and he “wanted to make sure that it wasn’t stuffed with
meth.” Motion to Suppress Transcript at 9. Only after Weinley opened Sweet’s backpack
did Weinley contact the Huntington Police Department. Id. at 10-11; Post-Conviction
Transcript at 79.
Moreover, the evidence before the post-conviction court shows that Nix, Sweet’s
trial counsel, investigated Weinley’s potential status before the motion to suppress hearing.
Nix testified that he had discussed Weinley’s potential status as a paid informant with the
deputy prosecutor, Andrew Kobe. Nix testified that Kobe had told him about Weinley’s
2007 contract but told him that Weinley was not paid a weekly fee and was not on the
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department’s payroll. Post-Conviction Transcript at 104. Based on this information, Nix
did not question Weinley about his status at the motion to suppress hearing.
Sweet’s arguments on appeal are, in essence, a request for this court to ignore the
evidence most favorable to the post-conviction court’s judgment and, instead, reweigh the
evidence in the manner most favorable to Sweet. We will not do so. See Lindsey, 888
N.E.2d at 322. Considering only the evidence most favorable to the post-conviction court’s
judgment, it is clear that Sweet has not met his burden to demonstrate that Weinley was an
agent of the Huntington Police Department on November 28, 2008. Sweet cannot show
that the Huntington Police Department knew of and acquiesced in Weinley’s search of
Sweet’s backpack and that Weinley’s purpose in conducting that search was to assist law
enforcement or to further his own ends. See Bone, 771 N.E.2d at 714. Indeed, the evidence
demonstrates that Weinley was acting as a private citizen when he searched Sweet’s
backpack. As such, the Fourth Amendment does not apply here. Id. Further, Sweet cannot
show that Nix failed to investigate this issue before the motion to suppress hearing or that,
had this issue been raised, Sweet would not have pleaded guilty and would have succeeded
at trial. See Helton, 907 N.E.2d at 1023. In sum, the evidence as a whole does not lead
unerringly and unmistakably to a decision opposite that reached by the post-conviction
court. See Lindsey, 888 N.E.2d at 322.
Accordingly, Sweet cannot demonstrate either that his counsel rendered ineffective
assistance or that Sweet was prejudiced by his counsel’s assistance. See Helton, 907
N.E.2d at 1023. Further, Sweet cannot demonstrate that he entered into the guilty plea
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unknowingly, unintelligently, or involuntarily. See id. As such, we affirm the post-
conviction court’s denial of Sweet’s petition for post-conviction relief.
Affirmed.
MATHIAS, J., concurs.
BROWN, J., concurs in result.
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