Marcus Conner v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 08 2020, 8:55 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy E. Karozos Curtis T. Hill, Jr.
Indiana State Public Defender Attorney General of Indiana
J. Michael Sauer
Deputy Public Defender Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marcus Conner, April 8, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-2106
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable George W.
Appellee-Plaintiff Biddlecome, Senior Judge
Trial Court Cause No.
20D03-1701-PC-5
May, Judge.
[1] Marcus Conner appeals the post-conviction court’s denial of his petition for
post-conviction relief. He raises two issues for our review, which we revise and
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restate as: (1) whether his trial counsel was ineffective for failing to assert his
right to a speedy trial under the Indiana and United States Constitutions, and
(2) whether his appellate counsel was ineffective for not arguing that there was
insufficient evidence to demonstrate he committed his offense within 1,000 feet
of a youth program center. We affirm.
Facts and Procedural History
[2] In a memorandum decision affirming Conner’s convictions on direct appeal,
we summarized the facts and course of proceedings in his criminal case as
follows:
On September 19, 2012, Conner was arrested after he sold
cocaine to two confidential informants during three separate
controlled buys arranged by the Elkhart Police Department.
Conner sold the cocaine from his home, which was located
within 1000 feet of a youth program center. On September 24,
2012, the State charged Conner with three counts of Dealing in
Cocaine, as Class A felonies,[ 1] and Maintaining a Common
Nuisance, as a Class D felony.[ 2] On March 26, 2015, the State
moved to amend the charging information to allege that Conner
was a habitual offender.[ 3]
1
Ind. Code § 35-48-4-1 (2006).
2
Ind. Code § 35-48-4-13 (2001).
3
Ind. Code § 35-50-2-8 (2005).
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At Conner’s initial hearing, a trial date was set for March 11,
2013.
On the court’s own motion, and by an order dated March 8,
2013, the trial court vacated the March 11, 2013 trial date due to
court congestion and set a pre-trial conference for April 11, 2013
for the purpose of selecting a new trial date. On Conner’s
motion, the pretrial conference was continued. At a pre-trial
conference held on May 2, 2013, the trial was rescheduled for
July 15, 2013.
On defendant’s motion, and by an order dated July 12, 2013, the
trial court vacated the July 15, 2013 trial date, ‘with [Indiana
Criminal Rule] 4 time chargeable to the Defense’ (App. 149), and
scheduled a pre-trial conference for July 25, 2013. At the
conference, the trial was rescheduled for August 12, 2013.
On the State’s motion, and by an order dated July 31, 2013, the
trial court vacated the August 12, 2013 trial date due to court
congestion. At a pre-trial conference held September 5, 2013, the
trial was rescheduled for January 6, 2014.
On the court’s motion, and by an order dated January 2, 2014,
the court again vacated the January 6, 2014 trial date due to
court congestion and set a pre-trial conference for February 6,
2014. At the conference, the court set the trial for March 24,
2014.
The State then filed two more motions to continue due to court
congestion. By an order dated March 17, 2014, the March 24,
2014 trial was cancelled and rescheduled for June 23, 2014. By
an order dated June 19, 2014, the June 23, 2014 trial date also
was vacated.
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On July 7, 2014, Conner, acting pro se, sent to the court a
motion for discharge under Indiana Criminal Rule 4. Conner
was represented by counsel at the time, so the court did not
accept the filing. At a pretrial conference held July 31, 2014, the
cancelled June 23, 2014 trial was rescheduled for January 26,
2014 [sic].
On October 23, 2014, Conner submitted another pro se motion
for discharge, which the trial court again did not accept because
Conner was represented by counsel.
On the State’s motion, and by an order dated January 20, 2015,
the court rescheduled the January 26, 2015 trial due to court
congestion and set a pre-trial conference for February 26, 2015.
At the February 26, 2015 pre-trial conference, Conner, this time
by counsel, filed in open court a motion for discharge under
Indiana Criminal Rule 4. The court heard argument on the
motion. The motion was denied, and trial was set for April 6,
2015.
On April 6, 2015, the day of trial, Conner’s counsel moved to
withdraw his representation due to a conflict of interest. The trial
was continued.
A jury trial was held on July 20 and 21, 2015, and Conner was
found guilty as charged. Conner admitted to being a habitual
offender. By orders dated August 27 and 28, 2015, the trial court
sentenced Conner to an aggregate sentence of seventy-two years.
Conner v. State, No. 20A03-1509-CR-1426, 2016 WL 3745924, slip. op. at 1-2
(Ind. Ct. App. July 13, 2016) (footnotes added).
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[3] On direct appeal, Conner argued that he was entitled to discharge under
Indiana Criminal Rule 4(C) because two of the trial court’s findings of court
congestion were erroneous. Id. at 2-3. We held the number of days of delay
chargeable to the State did not exceed 365. Id. at 5. Conner also argued the
delay violated his constitutional right to a speedy trial, but we held the
argument was waived because trial counsel did not raise the argument below.
Id. at 6. We affirmed Conner’s convictions. Id.
[4] Conner filed a petition for post-conviction relief pro se on January 23, 2017. On
June 27, 2017, the court appointed a public defender to represent Conner, and
Conner filed an amended petition on November 8, 2018. The amended petition
alleged ineffective assistance of both trial counsel and appellate counsel. The
amended petition argued Conner’s trial counsel were ineffective because they
did not argue the delay in bringing Conner to trial violated Conner’s right to a
speedy trial. The amended petition also argued Conner’s appellate counsel was
ineffective for not arguing there was insufficient evidence to prove Conner sold
cocaine within 1000 feet of a youth program center. The post-conviction court
held a bifurcated evidentiary hearing on March 29, 2019, and May 3, 2019.
[5] Conner’s trial attorneys, Peter Todd and Christopher Crawford, as well as
Conner’s appellate counsel, Mari Duerring, testified at the hearing. Todd
initially represented Conner at the trial level, but Crawford took over the
representation of Conner following a reassignment of responsibilities among the
Elkhart County public defenders. Crawford withdrew his representation when
he discovered a conflict of interest, and Todd resumed his representation of
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Conner. Todd testified at the hearing on Conner’s petition for post-conviction
relief that even though he was familiar with Criminal Rule 4 and the
constitutional right to a speedy trial, he “didn’t contemplate in [Conner’s] case
that that might be something [he] would file on [Conner’s] behalf.” (Tr. Vol. II
at 10.)
[6] Crawford testified that, while he filed a motion for discharge under Criminal
Rule 4, he thought he did not also assert Conner’s constitutional right to a
speedy trial because evidence was not lost as a result of the delay. Duerring
testified she did not raise the issue of whether the State presented sufficient
evidence to prove Conner dealt cocaine within 1,000 feet of a youth program
center on direct appeal because she did not think the issue was as strong as the
arguments she raised.
[7] On August 30, 2019, the post-conviction court issued an order denying
Conner’s petition for post-conviction relief with findings of fact and conclusions
of law. Regarding Conner’s claim his trial attorneys were ineffective for failing
to adequately assert his constitutional right to a speedy trial, the court found
the issue of whether [Conner] was entitled to be discharged under
the speedy trial provisions of the United States and Indiana
Constitutions was raised on direct appeal and decided adversely
to [Conner]. Accordingly, as a matter of procedure, this
argument is res judicata and not available for review in this [post-
conviction proceeding].
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(App. Vol. II at 134-135) (emphasis in original). The court nevertheless
analyzed the delay from the date of Conner’s arrest to his trial and determined
the delay was justified. The court held
trial counsel’s performance cannot be said to have fallen below
an objective standard of reasonableness when he chose not to
object to the delay in this case on constitutional grounds as well
as pursuant to Criminal Rule 4. Moreover, [Conner] has not
demonstrated that had counsel done so, the result would have
been different, i.e., he would have been discharged or his
convictions would have been vacated.
(Id. at 138.)
[8] The court also found appellate counsel was not ineffective because Conner’s
argument that there was insufficient evidence to show he dealt cocaine within
1,000 feet of a youth program center was not supported by the record. The
court made findings referencing an Elkhart Police Department officer’s
testimony during Conner’s criminal trial that two Elkhart County Health
Department buildings were located within 1,000 feet of Conner’s residence and
the testimony of both Gwen Jaeger and Melanie Sizemore regarding the
programs offered to children at each of the two Health Department buildings.
Discussion and Decision
[9] The petitioner for post-conviction relief must establish that he is entitled to relief
by a preponderance of the evidence. Timberlake v. State, 753 N.E.2d 591, 597
(Ind. 2001), reh’g denied, cert. denied 537 U.S. 839 (2002). “Because he is now
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appealing 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.” Id. “Where the [post[-]conviction] court has entered
findings of fact and conclusions of law, we accept the findings of fact unless
clearly erroneous, but accord no deference [to] conclusions of law.” Turner v.
State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. We will reverse
the post-conviction court’s decision only if the evidence is without conflict and
leads to a conclusion opposite that reached by the post-conviction court. Id. at
581-82.
[10] The Sixth Amendment to the United States Constitution provides that in all
criminal prosecutions, a defendant is entitled “to have the assistance of counsel
for his defense.” U.S. Const. amend. VI. Counsel’s assistance must be effective
for this constitutional guarantee to be realized. Strickland v. Washington, 466
U.S. 668, 686 (1984), reh’g denied. There is a strong presumption that trial
counsel provided effective representation, and a petitioner must put forth
compelling evidence to rebut that presumption. McCullough v. State, 973 N.E.2d
62, 74 (Ind. Ct. App. 2012), trans. denied. “Isolated poor strategy, inexperience,
or bad tactics does not necessarily constitute ineffective assistance of counsel.”
Id. Rather, a petitioner must show that trial counsel’s performance was
deficient, and the petitioner was prejudiced by the deficiency. Id. at 75.
[11] When evaluating a defendant’s ineffective-assistance-of-counsel claim, we apply
the well-established, two-part Strickland test. “The defendant must prove: (1)
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counsel rendered deficient performance, meaning counsel’s representation fell
below an objective standard of reasonableness as gauged by prevailing
professional norms; and (2) counsel’s deficient performance prejudiced the
defendant, i.e., but for counsel’s errors the result of the proceeding would have
been different.” Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019) (internal
citation omitted). We also apply the Strickland test when evaluating a claim of
ineffective assistance of appellate counsel. Hollowell v. State, 19 N.E.3d 263, 269
(Ind. 2014). The petitioner “must show appellate counsel was deficient in his or
her performance and that the deficiency resulted in prejudice.” Id.
1. Performance of Trial Counsel Regarding Conner’s Right
to a Speedy Trial
[12] Conner argues his trial attorneys were ineffective because they failed to preserve
his constitutional right to a speedy trial. The United States Constitution
provides: “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial . . . .” U.S. Const. amend. VI. Additionally, the
Indiana Constitution provides: “Justice shall be administered freely, and
without purchase; completely, and without denial; speedily, and without
delay.” Ind. Const. Art. 1, sec. 12. In Barker v. Wingo, the United States
Supreme Court announced a balancing test for courts to consider in
determining if a criminal defendant has been deprived of the right to a speedy
trial. 407 U.S. 514, 530 (1972). The test considers four factors: “Length of
delay, the reason for the delay, the defendant’s assertion of his right, and
prejudice to the defendant.” Id. We use the Barker factors to analyze speedy
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trial claims asserted under either the federal or the state constitution. Sweeney v.
State, 704 N.E.2d 86, 102 (Ind. 1998).
[13] Indiana Criminal Rule 4 is meant to ensure that a defendant receives a prompt
trial, but a Criminal Rule 4 challenge is separate and distinct from a claimed
violation of a defendant’s constitutional right to a speedy trial. Austin v. State,
997 N.E.2d 1027, 1037 n.7 (Ind. 2013). Criminal Rule 4(A) limits the amount
of time a defendant may remain in jail awaiting trial. A defendant may not be
held in jail without trial for a period in excess of six months unless the
defendant moves for a continuance, the defendant delays the trial by his own
act, or there is not sufficient time to try the defendant because of court
congestion or emergency. Ind. Criminal Rule 4. Similarly, Criminal Rule 4(C)
provides that a defendant shall not be held to answer a criminal charge for a
period greater than one year unless the defendant moves for a continuance, the
defendant delays the trial by his own act, or there is not sufficient time to try the
defendant because of court congestion or emergency. Id. When evaluating a
Criminal Rule 4 motion, we count the number of days the defendant has been
held to answer a criminal charge, discount the number of days of delay
attributable to the defendant’s actions and court congestion, and if the total
number of days exceeds the time period provided in the rule, grant the
defendant relief. See Curtis v. State, 948 N.E.2d 1143, 1151 (Ind. 2011) (holding
that “because the days that count toward the Rule 4(C) period exceed 365, the
trial court should have granted Curtis’s motion to dismiss and discharge”).
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[14] Initially, Conner challenges the post-conviction court’s conclusion that his
argument that he was entitled to discharge pursuant to the speedy trial
provisions of the United States and Indiana Constitutions is barred by res
judicata because the argument was raised on direct appeal. Conner
acknowledges that “[i]f an issue was raised on direct appeal, but decided
adversely to the petitioner, it is res judicata.” Reed v. State, 856 N.E.2d 1189,
1194 (Ind. 2006). However, Conner argues we did not consider or decide
whether Conner should have been discharged pursuant to the speedy trial
provisions of the state and federal constitutions because we held on direct
appeal that the challenge was waived. See Conner, slip op. at 6 (“Conner did not
raise his constitutional claims before the trial court, either in his written motion
for discharge or at the hearing on the motion. Issues not raised at the trial level
are generally waived on appeal. Accordingly, Conner’s constitutional speedy-
trial claims are forfeited.”) (internal citation omitted). Therefore, Conner
maintains, he is not barred from arguing that he is entitled to post-conviction
relief because his trial attorneys were ineffective in failing to preserve the issue
for appeal. We agree that Conner’s claim is not barred by res judicata. See Reed,
856 N.E.2d at 1195 (holding defendant’s ineffective assistance of counsel claim
was not barred by res judicata because, although a sentencing issue was raised on
direct appeal, counsel did not raise argument that the court could not impose
consecutive sentences).
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A. Length of Delay
[15] Conner argues all four Barker factors weigh in his favor. He notes the delay
from when charges were filed against him to when he was tried was 1,029
days. 4 The length of the delay serves as a “triggering mechanism” for a
defendant to assert his speedy trial right. Barker, 407 U.S. at 530. The tolerable
length of a delay depends on the nature and circumstances of each case. Id. at
530-31. Conner points to Ballentine v. State, in which our Indiana Supreme
Court noted that facially, “and without considering other factors,” a delay of
two-and-one-half years is “unusually long.” 480 N.E.2d 957, 959 (Ind. 1985).
Conner also cites Logan v. State, wherein our Indiana Supreme Court observed
that a delay of over three-and-one-half years in the defendant’s case “was
considerable, unfortunate, and inexcusable.” 16 N.E.3d 953, 962 (Ind. 2014). 5
Consequently, the Supreme Court held the length of the delay weighed heavily
in Logan’s favor. Id. Therefore, Conner contends the post-conviction court
should have weighed heavily in his favor the length of delay between when
Conner was charged and when he was tried.
[16] However, as the State points out, the length of the delay between when Conner
was charged and when he was tried is not as long as the delay in some cases
where defendants have made unsuccessful speedy-trial claims. See, e.g., Barker,
4
The time between charging and trial was 1,029 days. However, Conner was incarcerated for 1,034 days
before trial because he was arrested five days before he was charged.
5
Conner’s case and Logan both originated in Elkhart Superior Court 3.
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407 U.S. at 533 (a “well over five year[ ]” delay); O’Quinn v. Spiller, 806 F.3d
974, 977-79 (7th Cir. 2015) (finding reasonable application of Barker when state
court denied speedy-trial claim for forty-two-month delay); United States v.
Oriedo, 498 F.3d 593, 598 (7th Cir. 2007) (“nearly three years”); Johnson v. State,
83 N.E.3d 81, 87 (Ind. Ct. App. 2017) (1,579-day delay); Sickels v. State, 960
N.E.2d 205, 221 (Ind. Ct. App. 2012) (nine-year delay), reh’g denied, aff’d on
trans. 982 N.E.2d 1010 (Ind. 2013). But see Logan, 16 N.E.3d at 962 (finding
“three-and-one-half-year delay” unconstitutional). Therefore, while the delay
in bringing Conner to trial was lengthy, the delay was not so long that it
violated Conner’s constitutional right to a speedy trial.
B. Reasons for the Delay
[17] The next factor we consider is the reasons for the delay. We look with strong
disfavor on any attempt by the State to delay trial in order to hamper the
defendant’s defense. Barker, 407 U.S. at 531. Purportedly neutral reasons for
delay, such as negligence or overcrowded courts, are weighed less heavily
against the State. Id. However, a missing witness or some other valid reason
may fully justify delay. Id.
[18] In Logan, the court stated “[a]though a congested court calendar weighs less
heavily against the State, it must be viewed as the responsibility of the
government and an impediment to a defendant’s constitutional right to a speedy
trial.” 16 N.E.3d at 963. Conner’s trial was delayed 728 days due to court
congestion, and Conner argues this delay should weigh against the State.
Additionally, Conner’s trial was delayed 105 days because his trial counsel
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discovered a conflict of interest on the day of trial. Conner contends this delay
should also be attributed to the State because the State could have determined
there was a conflict of interest in advance of trial by reviewing the dockets of
the confidential informant’s criminal cases.
[19] However, Conner puts forth no authority to support his proposition that the
State should have reviewed the confidential informant’s chronological case
summaries to determine if Conner’s trial counsel had a conflict of interest. We
decline to impose such a duty on the State. We also note that when the court
continued Conner’s trial due to court congestion, the court did so to
accommodate older cases. (Prior Case App. Vol. I at 152 (moved for case
charged in April 2009); 144-45 (moved for case charged in March 2012); 143
(moved for case charged in September 2010); 139-40 (moved for case charged in
June 2012 and subject to Rule 4(B) request); 137-38 (moved for case charged in
June 2012); 127-28 (moved for case charged in September 2011).) Therefore,
while the delays due to court congestion weigh against the State, we give this
factor slight weight because the delays were justified. See Wilkins v. State, 901
N.E.2d 535, 537-38 (Ind. Ct. App. 2009) (holding defendant’s right to speedy
trial was not violated when trial was continued due to court congestion), trans.
denied.
C. Assertion of Speedy Trial Right
[20] As explained in Barker: “The more serious the deprivation, the more likely a
defendant is to complain. The defendant’s assertion of his speedy trial right,
then, is entitled to strong evidentiary weight in determining whether the
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defendant is being deprived of the right.” 407 U.S. at 531-32. Conner sent five
pro se letters or motions to the trial court while he was represented by counsel
complaining about the delay in bringing him to trial, and Conner’s counsel filed
a motion for discharge under Criminal Rule 4 in February 2015. The motion
for discharge asked the court to release Conner from jail or dismiss the case.
Conner notes the defendant in Logan objected seven times to the delay in
bringing him to trial, and the Logan court held that these repeated assertions
weighed in Logan’s favor. 16 N.E.3d at 963. 6 Conner contends his pro se
assertions should receive the same weight in the Barker analysis as motions
made by counsel. However, as our Indiana Supreme Court observed in
Underwood v. State, trial courts are “not required” to respond to pro se requests or
motions when the litigant is represented by counsel. 722 N.E.2d 828, 832 (Ind.
2000) (“To require the trial court to respond to both Defendant and counsel
would effectively create a hybrid representation to which Defendant is not
entitled.”), reh’g denied. We also note that a litigant’s pro se requests could
6
Conner offered the chronological case summary in Logan and motions Logan filed in the trial court as
Petitioner’s Exhibit 4 at the hearing on postconviction relief. However, the court did not admit the exhibit
into evidence. Conner argues the exhibit “is relevant to a proper evaluation of Conner’s assertion of his
speedy trial right. The post-conviction court abused its discretion by refusing to admit Petitioner’s Exhibit 4
into evidence.” (Appellant’s Br. at 29.) The trial court may refuse to admit evidence that is cumulative. The
Pelican, Inc. v. Downey, 567 N.E.2d 847, 850 (Ind. Ct. App. 1991), trans. denied. Before ruling on the State’s
objection to Exhibit 4, the court asked Conner what the exhibit added to what was said in the Logan decision.
Apparently unsatisfied with Conner’s answer, the court sustained the State’s objection. Therefore, we hold
the trial court did not abuse its discretion in refusing to admit Exhibit 4. See id. at 850 (holding trial court did
not abuse discretion in excluding cumulative evidence).
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undermine trial counsel’s litigation strategy. Therefore, Conner’s assertion of
his constitutional right carries little weight.
D. Prejudice Due to Delay
[21] The speedy trial right is designed to protect three interests: “(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be impaired.”
Barker, 407 U.S. at 532. The most serious of these concerns is the possibility the
defense may be impaired. Id. Conner argues he was prejudiced by his lengthy
“oppressive pretrial incarceration.” (Appellant’s Br. at 30.) He notes his period
of pretrial incarceration was longer than the defendant in Logan. 16 N.E.3d at
964 (Conner’s 1,034 days as compared to Logan’s 1,029 days). Conner
disagrees with the post-conviction court’s conclusion that his pretrial
incarceration “although lengthy, is clearly explainable and justified.” (App.
Vol. II at 138.) However, Conner puts forth no assertion of prejudice beyond
the fact of his incarceration. See Johnson, 83 N.E.3d at 87 (“The burden is on
the defendant to show actual prejudice to prove a speedy trial deprivation.”). In
fact, Crawford testified evidence was not lost as a result of the delay.
Therefore, this factor weighs heavily in favor of the State. See id. (holding
prejudice factor weighed against defendant when his defense was not impaired).
[22] The length of delay in bringing Conner to trial was long, but other defendants
have had longer delays without violating their rights to a speedy trial.
Therefore, we weigh the length of the delay in Conner’s favor but afford it little
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weight. Similarly, we weigh the substantial delay due to court congestion only
slightly against the State. We also weigh Conner’s assertion of his speedy trial
right slightly in his favor because, while his trial counsel did not explicitly raise
Conner’s constitutional right to a speedy trial, Conner’s counsel did file a
motion for discharge under Criminal Rule 4. However, most significantly, we
weigh the lack of prejudice to Conner as a result of the delay heavily against
Conner. Having considered all four Barker factors, we hold that Conner’s trial
attorneys did not perform deficiently because any constitutional challenge to
the pretrial delay would not have been successful. See Wingate v. State, 900
N.E.2d 468, 474 (Ind. Ct. App. 2009) (holding trial counsel did not render
ineffective assistance by not arguing the State violated Criminal Rule 4(B) when
it filed additional charges).
2. Performance of Appellate Counsel
[23] Conner argues his appellate counsel was ineffective because she “failed to
recognize that despite evidence of youth program centers within 1,000 feet of
the offenses at the time of trial in 2015, there was no evidence of youth program
centers at these locations at the time of the offenses in 2012.” (Appellant’s Br.
at 33.) He argues the only evidence that a youth program center operated
within 1,000 feet of Conner’s house in 2012 was hearsay, which the trial court
admonished the jury not to consider.
[24] Claims of ineffective assistance of appellant counsel generally fall into three
categories: “(1) denying access to appeal; (2) waiver of issues; (3) failure to
present issues well.” Harrison v. State, 707 N.E.2d 767, 786 (Ind. 1999).
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Appellate counsel is expected to present the issues on appeal most likely to
result in a reversal, and we show strong deference to appellate counsel’s
strategic decision of which issues to bring. Walker v. State, 988 N.E.2d 1181,
1191 (Ind. Ct. App. 2013), trans. denied. “In evaluating whether appellate
counsel performed deficiently by failing to raise an issue on appeal, we apply
the following test: (1) whether the unraised issue is significant and obvious from
the face of the record and (2) whether the unraised issue is ‘clearly stronger’
than the raised issues.” Id. (quoting Henley v. State, 881 N.E.2d 639, 644 (Ind.
2008)).
[25] Conner maintains the absence of evidence regarding youth program centers in
2012 was significant and obvious from the face of the record, and the issue was
clearly stronger than the issues raised on direct appeal by Conner’s appellate
counsel. Conner sold cocaine in three separate controlled buys between August
31 and September 19, 2012. 7 Conner’s jury trial occurred on July 20 and 21,
2015. Melanie Sizemore testified during Conner’s jury trial. She was an
employee of Healthy Beginnings, a division of the Elkhart County Health
Department, located at 1400 Hudson Street in Elkhart, Indiana.
[26] Conner challenges the post-conviction court’s finding that the State
“question[ed] Ms. Sizemore about her knowledge of the hours of operation in
2012, [sic] and established a business records exception to the hearsay
7
The trial court took judicial notice that one of the controlled buys occurred on a Friday, and the other two
controlled buys occurred on Wednesdays.
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objection.” (App. Vol. II at 161.) Conner objected on hearsay grounds to
Sizemore’s testimony about Healthy Beginnings’ hours of operation in 2012.
The court sustained Conner’s objection and admonished the jury. While the
State asked Sizemore additional questions to try to establish that her testimony
fell within the business records exception to the hearsay rule, Conner contends
such efforts were insufficient.
[27] However, we note the uncorroborated testimony of a single witness can sustain
a conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Notwithstanding
Sizemore’s testimony, Conner’s proposed sufficiency argument fails because of
the testimony of Gwen Jaeger, manager of the nursing division for the Elkhart
County Health Department building at 608 Oakland Avenue in Elkhart. The
building housed an immunization clinic, a lead poison prevention program for
small children, and other services. The clinic served both children and adults.
Jaeger testified the clinic was open Monday through Friday and approximately
twenty to thirty children would visit the clinic per day. The State asked Jaeger:
[State:] So, Miss Jaeger, would children have been present at 608
Oakland Avenue on Friday, August 31st, at around 11:00 a.m.?
[Jaeger:] I would say, yeah.
[State:] Okay. What about on Wednesday, September 5th of
2012, about 1:30 p.m.?
[Jaeger:] Yeah. We’re not closed for lunch, so yeah. Yes.
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[State:] How about Wednesday, September 19th, 2012, at 1:45
p.m.?
[Jaeger:] Yes.
(Prior Case Tr. Vol. II at 256.) Conner attempts to discredit this testimony by
arguing there is no evidence in the record that Jaeger worked at the Oakland
Avenue clinic in 2012. He also contends Jaeger’s use of the present tense
demonstrates she was testifying as to the hours of operation at time of trial
rather than at the time of offense. However, these arguments would not have
been successful on direct appeal because they are requests for us to reweigh the
evidence. See Schath v. State, 2 N.E.3d 136, 138 (Ind. Ct. App. 2014) (“appellate
courts do not reweigh the evidence or assess the credibility of the witnesses”).
Therefore, we hold Conner’s appellate counsel did not perform deficiently
when she chose not to raise a meritless argument. See Garrett v. State, 992
N.E.2d 710, 724-25 (Ind. 2013) (holding appellate counsel did not perform
deficiently by not raising weak double jeopardy argument on direct appeal).
Conclusion
[28] Conner’s trial attorneys did not perform deficiently by failing to raise a
constitutional speedy trial objection to the delay in bringing Conner to trial.
The delay was justified, and Conner’s defense was not prejudiced as a result of
the delay. Also, Conner’s appellate counsel did not perform deficiently by
failing to raise a sufficiency argument on direct appeal because such argument
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would not have been successful. Therefore, we affirm the trial court’s denial of
Conner’s petition for post-conviction relief.
[29] Affirmed.
Najam, J., and Altice, J., concur.
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