Paul Parsley v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 08 2020, 9:09 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Paul Parsley Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul Parsley, September 8, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-PC-2262
v. Appeal from the Fayette Circuit
Court
State of Indiana, The Honorable Hubert Branstetter,
Appellee-Plaintiff Jr., Judge
Trial Court Cause No.
21C01-1509-PC-730
Altice, Judge.
Case Summary
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[1] Following a hearing, the trial court denied Paul Parsley’s pro se petition for
post-conviction relief. Parsley challenges on appeal the trial court’s
determination that he did not receive ineffective assistance of trial counsel
during his trial for two counts of dealing in a controlled substance, one as a
Class A felony and one as a Class B felony.
[2] We affirm.
Facts & Procedural History
[3] The facts underlying Parsley’s convictions were set out as follows in the
memorandum decision issued in his direct appeal:
From January 2011 until June 2011, Cody Tipton worked as a
confidential informant for the RUFF Drug Task Force. Tipton
approached RUFF Drug Task Force member David Joseph
Laughlin, II, of the Fayette County Sheriff’s Department, with a
list of people from whom he offered to attempt to make
controlled buys, in exchange for payment as a confidential
informant, and to potentially have felony charges filed against
him dismissed. Although the task force typically researched the
criminal history of potential informants prior to proceeding with
a controlled buy, Tipton was immediately allowed to make a
controlled buy because Officer Laughlin was familiar with
Tipton’s background. Officer Laughlin had known Tipton for
approximately seven or eight years having met while Tipton was
a high school student and Officer Laughlin was a school security
officer. During the time Tipton served as a confidential
informant, he made approximately thirty-six controlled buys.
One of the people on Tipton’s list was Parsley, an individual
Officer Laughlin had known for a number of years. On January
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14, 2011, Tipton called Parsley and told him that he needed a fix
for a backache. Officer Laughlin met Tipton at Baptist Temple
where Tipton and his vehicle were searched before and after he
was equipped with a recording device. Tipton then drove to
Parsley’s grandfather’s house, where Parsley was living, while
Officer Laughlin followed behind. The house, which was
occupied by Parsley and other family members, was located at
the intersection of 11th Street and Grand Avenue.
When Tipton arrived at the house, he exited his own vehicle and
got into the backseat of another vehicle driven by Parsley. Also
present in the car, sitting in the front passenger seat, was
Stephanie Ketcham, Parsley’s girlfriend. Parsley drove his
vehicle down a nearby alley on 12th Street, where he bought
three oxycodone pills weighing 30 milligrams each. While
Parsley was purchasing the drugs, Tipton and Ketcham discussed
Parsley specifically and Ketcham’s concern about Parsley’s
lifestyle. After Parsley returned to and entered his vehicle, he
handed Tipton what Ketcham identified as oxycodone pills.
Parsley then returned to his grandfather’s house, Tipton got back
into his own vehicle, and Officer Laughlin and Tipton returned
to Baptist Temple. Tipton had the three oxycodone pills and told
Officer Laughlin, for purposes of making a post-buy statement,
about the events that had taken place.
Later, on May 18, 2011, Tipton met with Officer Laughlin at
Smalley’s Pond to conduct another controlled buy from Parsley.
On this occasion, the same search procedure was followed prior
to and after equipping Tipton with recording equipment. Tipton
drove to Jennifer Bramer’s home to meet Parsley. Tipton asked
Parsley for Lortabs, also known as oxycodone hydrochloride,
and they agreed to meet at Parsley’s grandfather’s house. While
Tipton drove to Parsley’s grandfather’s house, Parsley in another
car went to another house to retrieve the Lortabs. Parsley arrived
with the drugs and handed them to Tipton. Tipton then left
Parsley’s house and met with investigating officers at a nearby
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ballpark where he gave them the evidence, five Lortabs, ten
milligram pills, and was searched for contraband.
Subsequent laboratory analysis confirmed that the pills Parsley
delivered to Tipton contained oxycodone. Mike Bottomley,
Superintendent of Parks and Recreation for the City of
Connersville, testified that Industrial Park was a neighborhood
park maintained by the city and included a playground,
basketball courts, and a softball diamond. Fayette County
Surveyor Jerry Gobin measured the distance between Industrial
Park and Parsley’s grandfather’s house. He found that it was 870
feet from the southwest corner of the lot on which the house sits
to the eastern edge of Industrial Park. He further testified that
the entire lot on which Parsley’s grandfather’s house sits is within
1,000 feet of Industrial Park.
The State charged Parsley with the two offenses, and, after a jury
trial, he was convicted of one count of dealing in a controlled
substance within 1000 feet of a park as a Class A felony, and
dealing in a controlled substance as a Class B felony. The trial
court sentenced Parsley to forty years for the Class A felony
offense, and to a twelve-year concurrent sentence for the Class B
felony offense. Parsley now appeals.
Parsley v. State, No. 21A01-1402-CR-69 (Ind. Ct. App. October 16, 2014)
(footnote omitted), trans. denied.
[4] Parsley appealed his convictions and sentence, arguing that the evidence was
insufficient and that his sentence was inappropriate. On October 16, 2014, this
court affirmed Parsley’s convictions and his forty-year sentence. See id.
[5] On September 3, 2015, Parsley filed a pro se petition for post-conviction relief.
This petition was amended a number of times, with the final amendment being
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on January 24, 2019. A public defender entered an appearance for Parsley
shortly after the initial filing but in March 2017 withdrew pursuant to Ind. Post-
Conviction Rule 1(9)(c). The trial court held a post-conviction evidentiary
hearing on April 26 and May 10, 2019. Thereafter, on July 15, 2019, the court
issued an order denying Parsley’s petition. Following an unsuccessful motion
to correct error, Parsley now appeals.
Standard of Review
[6] Post-conviction proceedings are civil proceedings in which a petitioner may
present limited collateral challenges to a conviction and sentence. Wilkes v.
State, 984 N.E.2d 1236, 1240 (Ind. 2013). The petitioner bears the burden of
establishing his claims by a preponderance of the evidence. Id.On appeal from the denial of post-conviction relief, the petitioner “faces a
rigorous standard of review, as the reviewing court may consider only the
evidence and the reasonable inferences supporting the judgment of the post-
conviction court.” Jent v. State, 120 N.E.3d 290, 92-93 (Ind. Ct. App. 2019),
trans. denied. We accept the post-conviction court’s findings of fact and may
reverse only if the findings are clearly erroneous. Id. The petitioner must
convince us that there is “no way within the law that the court below could
have reached the decision it did.” Weisheit v. State, 109 N.E.3d 978, 983 (Ind.
2018) (quoting Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002)), reh’g denied
(2019), cert. denied, 139 S. Ct. 2749 (2019)); see also Garrett v. State, 992 N.E.2d
710, 718 (Ind. 2013) (“To prevail from the denial of post-conviction relief, a
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petitioner must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite that reached by the post-conviction
court.”).
[7] Further, where post-conviction relief is premised on alleged ineffective
assistance of counsel, we evaluate the claim under the two-part test set out in
Strickland v. Washington, 466 U.S. 668 (1984). To prevail, Parsley must show: 1)
that counsel’s performance was deficient based on prevailing professional
norms; and 2) that the deficient performance prejudiced the defense. Id.;
Weisheit, 109 N.E.3d at 983.
In analyzing whether counsel’s performance was deficient, the
Court first asks whether, “‘considering all the circumstances,’
counsel’s actions were ‘reasonable [ ] under prevailing
professional norms.’” Wilkes, 984 N.E.2d at 1240 (quoting
Strickland, 466 U.S. at 668 []). Counsel is afforded considerable
discretion in choosing strategy and tactics, and judicial scrutiny
of counsel’s performance is highly deferential. Id.To demonstrate prejudice, “the defendant must show 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 is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694 [].
There is a strong presumption that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. Stevens, 770 N.E.2d at 746.
Counsel is afforded considerable discretion in choosing strategy
and tactics and these decisions are entitled to deferential review.
Id. at 746-47 (citing Strickland, 466 U.S. at 689 []). Furthermore,
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isolated mistakes, poor strategy, inexperience and instances of
bad judgment do not necessarily render representation
ineffective. Id. at 747 (citations omitted).
Weisheit, 109 N.E.3d at 983-84.
Discussion & Decision
[8] Parsley claims that his trial attorney was ineffective for failing to: 1) adequately
consult with him and prepare for trial; 2) file a motion to suppress or dismiss
due to inadequate procedures followed during the controlled buys; 3) challenge
the presentation of false testimony; 4) raise the defense of entrapment and 5)
properly argue available mitigation at sentencing. We will address each in turn.
[9] Parsley initially claims that his trial counsel was ineffective for failing to
adequately consult with him prior to trial or otherwise prepare for trial. Parsley
does not provide any cogent argument in this regard or citations to record or
relevant authority and, in fact, he asserts facts that are not in the record.
Moreover, the evidence most favorable to the judgment reveals that counsel
could not locate Parsley for about a year during the pendency of the case.
Counsel testified that his office sent Parsley four letters to which Parsley never
responded. At some point, Parsley did come into counsel’s office twice, once to
view the buy recordings and another time to discuss a plea offer. Counsel also
visited Parsley once in jail, where he was incarcerated on other charges, prior to
the jury trial. Further, counsel testified that in preparing for trial, he would
have reviewed all the discovery, including narrative reports and the buy
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recordings, prior to trial, and he opined that it is not always necessary to
conduct depositions. Parsley has failed to establish that counsel was deficient
in this regard and has not shown what additional information counsel could
have garnered from further consultation or investigation to aid in Parsley’s
defense. See Coleman v. State, 694 N.E.2d 269, 274 (Ind. 1998) (“Allegations
that counsel failed adequately to consult with the appellant or failed to
investigate issues and interview witnesses do not amount to ineffective
assistance absent a showing of what additional information may have been
garnered from further consultation or investigation and how that additional
information would have aided in the preparation of the case.”).
[10] The bulk of Parsley’s argument on appeal centers on a claim that the procedures
used in the controlled buys were “grossly inadequate”. Appellant’s Brief at 11.
According to Parsley, the buys were “without the slightest doubt, the absolute
worst controlled buys in history, bar none.” Id. at 13. Parsley suggests that trial
counsel was ineffective because he failed to move for dismissal of all charges,
“move[] to suppress the entirety of the alleged controlled buys,” or advise the
jury of the inadequacies. Id. at 16.
[11] Initially, we observe that Parsley has mischaracterized the procedures utilized
in the controlled buys. Detective Laughlin’s testimony indicates that Tipton,
the confidential informant, was searched before and after each buy, as was
Tipton’s vehicle. Tipton also had a video recording device that was recording
throughout the duration of both controlled buys and recorded conversations
and exchanges between Tipton and Parsley. Although there were periods of
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time during the buys where Detective Laughlin lost sight of Tipton while
Tipton was traveling between locations, the recording continued throughout.
[12] During the first controlled buy, Tipton did get out of his vehicle and was away
from the recording device for about three minutes after the exchange with
Parsley and before meeting with Detective Laughlin, who was delayed meeting
Tipton. Parsley suggests that during this time, Tipton could have obtained
oxycodone pills from a third party and then switched them with the pills he had
just received from Parsley in order to set up Parsley. The evidence favorable to
the judgment, however, reveals that Ketchum testified that she witnessed the
drug exchange between Parsley and Tipton and that it involved “Roxy 30s,”
which Detective Laughlin testified was a street name for a form of oxycodone.
Trial Transcript at 148. Further, Tipton testified that he did not buy pills from
anyone else but Parsley during the first controlled buy and that he believed he
was being monitored by police the entire time.
[13] Parsley offers no valid legal basis for dismissal of the charges against him or a
motion to suppress based on the procedures utilized in the instant controlled
buys. He simply directs us to cases involving whether an affidavit based on a
controlled buy provided probable cause for issuance of a search warrant. See
Flaherty v. State, 443 N.E.2d 340 (Ind. Ct. App. 1982) (finding lack of probable
cause for a search warrant where informant’s reliability had not been
established and police officer failed to state in affidavit whether officer observed
informant enter and leave defendant’s apartment); Whirley v. State, 408 N.E.2d
629 (Ind. Ct. App. 1980) (holding that control exercised over buy was adequate
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to serve as basis for issuance of search warrant, notwithstanding fact that
informant was out of officer’s sight for 20 seconds). These cases are inapposite
because there was no search warrant involved in this case. Further, the jury
had before it not only the testimony of Detective Laughlin, but also the
testimony of Tipton and Ketchum, as well as the buy recordings and other
relevant evidence. Ultimately, it was the jury’s duty to weigh the evidence and
determine witness credibility. See Ramsey v. State, 853 N.E.2d 491, 502 (Ind. Ct.
App. 2006) (where both the informant and the detective testified, “the jury was
able to determine for itself whether there were sufficient controls in place during
the buys”), trans. denied; see also Maish v. State, 916 N.E.2d 918, 923-24 (Ind. Ct.
App. 2009) (finding sufficient evidence where informant, who had not been
searched prior to the drug buy, actually testified at trial); Hudson v. State, 462
N.E.2d 1077, 1082-83 (Ind. Ct. App. 1984) (holding that evidence supported
jury’s verdict for dealing in a controlled substance and noting that the sole
uncorroborated testimony of an informant-buyer is sufficient to convict, despite
any arguable inadequacies in the control of the buy).
[14] Here, defense counsel thoroughly cross-examined the witnesses regarding the
buy procedures and elicited testimony that Detective Laughlin lost sight of
Tipton on several occasions, that Detective Laughlin did not search every area
in which Tipton could have possibly secreted drugs, and that the searches were
not recorded. Counsel even had Detective Laughlin acknowledge the
possibility that Tipton “could have had drugs in the car or on his person” that
were not discovered during the pre-buy search. Trial Transcript at 72. Counsel
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actively questioned the credibility of both Tipton and Ketcham throughout the
trial and argued to the jury that they should not be believed, especially in light
of the faulty buy procedures. In sum, Parsley has not established that counsel
performed deficiently with respect to challenging the controlled buy procedures.
[15] Next, Parsley asserts that trial counsel failed to challenge certain testimony of
Ketcham and Detective Laughlin that he claims was perjurious. Upon
thoroughly reviewing the record, we find no support for Parsley’s claims that
these witnesses offered perjured testimony, and he provided no such evidence at
the post-conviction hearing. In fact, Parsley did not even raise this claim as it
relates to Detective Laughlin in his petition for post-conviction relief, which
results in waiver of the issue on appeal. See Allen v. State, 749 N.E.2d 1158,
1171 (Ind. 2001) (“Issues not raised in the petition for post-conviction relief
may not be raised for the first time on post-conviction appeal.”), cert. denied, 535
U.S. 1061 (2002). With respect to Ketcham, trial counsel cross-examined her,
establishing that she did not actually see money exchanged, and argued to the
jury that she lacked credibility. Parsley has failed in his burden to show
deficient performance and resulting prejudice with regard to the handling of
Ketcham’s testimony.
[16] Parsley also argues that trial counsel was ineffective for failing to pursue an
entrapment defense to lower his Class A felony conviction to a Class B felony.
He properly observes that Ind. Code § 35-48-4-16 provides defenses to a charge
of selling narcotics that is elevated based on being near school (or family
housing). Relevant here, subsection (c) of the statute provides a defense to the
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elevated charge where the location at which the defendant sold the drugs was
selected “at the request or suggestion of a law enforcement officer or an agent of
a law enforcement officer.” 1 Parsley argues that trial counsel should have
argued for reduction of his Class A felony because Tipton, an agent of
Detective Laughlin, requested that the second buy occur at Parsley’s residence,
which happened to be within 1000 feet of a school.
[17] The difficulty with Parsley’s argument is that there is no evidence in the trial
record that Tipton chose the location of the buy. Parsley suggests that on the
recording of the buy, State’s Exhibit 4, after Tipton and Parsley left Bramer’s
home in separate vehicles, Tipton can “clearly be heard” directing Parsley in a
phone call to meet him at Parsley’s home. Appellant’s Brief at 14. We have
closely listened to State’s Exhibit 4 multiple times and can discern no such
direction from Tipton regarding the location of the drug transfer. Further, we
find notable that the transaction occurred not at some random location but
outside Parsley’s own residence, which Parsley went directly into after giving
the drugs to Tipton. Finally, we note that at the end of the buy recording,
Tipton expressly informed Detective Laughlin that Parsley told Tipton to meet
at Parsley’s house. Parsley’s contrary testimony at the post-conviction hearing
was self-serving and does not establish that trial counsel was ineffective by not
raising a defense under I.C. § 35-48-4-16(c).
1
At the time of Parsley’s offense, this provision was found in subsection (c). The statute was amended in
2014 and now sets out this language in subsection (c)(1).
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[18] Finally, Parsley asserts that trial counsel provided ineffective assistance at his
sentencing hearing by failing to argue “readily available mitigation.” Appellant’s
Brief at 10. But he does not indicate what mitigating evidence was overlooked
by counsel or even set out or discuss the aggravating and mitigating factors
found by the trial court. Parsley’s sentence was affirmed on direct appeal, and
he did not assert in his petition for post-conviction relief that counsel was
ineffective with respect to the presentation of mitigating evidence at sentencing.
Accordingly, this ground is not available on appeal. See Allen, 749 N.E.2d at
1171.
[19] In sum, the trial court did not err in determining that trial counsel was not
ineffective. Thus, we affirm the denial of Parsley’s petition for post-conviction
relief.
[20] Judgment affirmed.
Riley, J. and May, J., concur.
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