Stacy Hart v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 20 2019, 9:06 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
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estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Stacy Y. Hart Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stacy Hart, September 20, 2019
Appellant-Petitioner, Court of Appeals Case No.
18A-PC-2378
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Respondent. Judge
Trial Court Cause No.
82C01-1605-PC-2580
Altice, Judge.
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Case Summary
[1] Stacy Hart appeals the denial of his petition for post-conviction relief, claiming
that the post-conviction court erred in ordering the matter to proceed by
affidavit in lieu of an evidentiary hearing. Hart also claims that the post-
conviction court erred in concluding that neither trial counsel nor appellate
counsel was ineffective.
[2] We affirm.
Facts & Procedural History
[3] The facts, as reported in Hart’s direct appeal, Hart v. State, No. 82A01-0506-CR-
236 (Ind. Ct. App. April 17, 2006), are as follows: On January 26, 2005, at
approximately 4:00 p.m., Evansville police officers responded to a call at an
apartment building at 1109 Covert Street reporting that Troy Duerson was
causing a disturbance. The apartment building was in close proximity to Akin
Park. There were outstanding arrest warrants for Duerson, who was described
as a black male, about 5’5” tall.
[4] Around 5:30 p.m., two of the officers noticed two black males matching
Duerson’s description in front of the apartment building. One of them, later
identified as Hart, turned and looked to the marked police car before walking
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quickly away. Officer Allen Gansman, who was driving the police car, cut
across a grassy area to the apartment building’s parking lot. By the time the
officers had exited the patrol car, Hart was already running. The officers
identified themselves as police and commanded Hart to stop. The officers
ultimately found Hart lying down in a vehicle that was parked behind a nearby
residence.
[5] Hart was arrested for resisting law enforcement and transported to the county
jail. During the booking process, Officer Gansman found four pills in a plastic
baggie in Hart’s pants pocket. The pills were later identified as clonazepam, a
Schedule IV controlled substance.
[6] Hart was charged with possession of a controlled substance within 1000 feet of
a public park, a class C felony, and resisting law enforcement, a class A
misdemeanor. During Hart’s jury trial that commenced in April 2005, the State
presented the testimony of Evansville’s civil engineer, who had created a map
depicting a boundary of a 1000-foot radius around Akin Park. It was
determined that the apartment building where Hart was initially spotted was
less than 1000 feet from the park.
[7] After the State presented its case-in-chief, Hart’s counsel requested the trial
court to “remove from the jury’s consideration all evidence of the pills,”
arguing that the police lacked probable cause to arrest or chase Hart, thus
constituting a violation of the Fourth Amendment and Article 1, Section 11 of
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the Indiana Constitution. Trial Transcript at 118. The trial court denied the
request.
[8] Hart testified on his own behalf, claiming that he “found” the pills in the
backseat of the police car. Trial Transcript at128. Hart claimed that while his
hands were handcuffed behind his back, he put the pills in his front pocket
because he intended to sell them while he was in jail. Throughout the course of
the trial, Hart maintained that he never possessed the pills until he discovered
them in the police cruiser.
[9] Following the presentation of evidence, the jury was instructed, inter alia, that it
was to give the benefit of the doubt to the defendant when considering evidence
The jury was also instructed, in both the preliminary and final instructions, that
possession of a controlled substance was a Class C felony if the controlled
substance was within 1000 feet of a public park. The trial court went on to
instruct the jury on the lesser-included offense of possession as a class D felony
and informed it that the only difference between the two offenses was proximity
to the park. Supplemental Appendix Vol. II at 15-17. Another final instruction
informed the jurors that if the evidence was susceptible of two reasonable
interpretations, they were to adopt that which supported Hart’s innocence, and
to reject the interpretation that pointed to guilt. Hart was found guilty on both
offenses as charged and was subsequently sentenced.
[10] On May 12, 2016, Hart filed his initial petition for post-conviction relief, but
made no allegations regarding a claim for relief. Thereafter, on January 10,
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2018, Hart amended his petition, alleging that his trial counsel was ineffective
for not raising a defense under Ind. Code § 35-48-4-16(b), i.e., that his
possession of the drugs near the park did not fall within 1000 feet of the
restrictive area. Hart also maintained that he received ineffective assistance of
appellate counsel for failing to properly challenge the sufficiency of the evidence
on the possession charge and for not raising trial counsel’s failure to tender a
“reasonable hypothesis of innocence” instruction. PCR Appendix Vol. II at 20.
[11] Thereafter, Hart filed a notice with the post-conviction court that he intended to
proceed pro se, and the State subsequently filed a motion requesting to proceed
by affidavit. The post-conviction court granted the State’s motion that same
day. Hart filed several requests for an evidentiary hearing or for the post-
conviction court to reconsider its denial of Hart’s previous requests for the
issuance of subpoenas to various witnesses. The post-conviction denied those
requests and found that Hart failed to submit any affidavits in support of his
petition within the ordered deadline. Hart also did not make any claim that he
sought to secure affidavits, and he did not contend that he was unable to secure
such affidavits.
[12] On October 29, 2018, the post-conviction court denied Hart’s request for relief
after considering only the trial record. The post-conviction court’s findings of
fact and conclusions of law provided in relevant part that
13. Petitioner claims that the trial counsel was ineffective for
failing to raise what Petitioner calls a “statutory defense” under
Ind. Code 35-48-4-16(b).
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14. At the time of Petitioner’s offense date, Indiana Code 35-48-
4-16(b), provided . . . that it was a defense to the possession of a
controlled substance in or within 1,000 feet of a public park that
the person was “briefly” in, or within 1,000 feet of the public
park, and that ‘no person under eighteen . . . years of age at least
three . . . years junior to the person was in . . . or within one
thousand feet of the . . . public park.”
...
16. Petitioner has failed to present any evidence by way of
affidavit of other means to show that his trial counsel should
have made an argument under Indiana Code 35-48-4-16, or that
counsel’s failure to make such an argument was ineffective
assistance of counsel.
...
23. Appellate counsel did make a sufficiency of the evidence
[argument] as to Count 1 on direct appeal, which argument was
rejected by the Indiana Court of Appeals.
24. As to Petitioner’s allegation that appellate counsel should
have challenged Petitioner’s tendered jury instruction on
reasonable hypothesis of innocence, . . . the court did cover the
reasonable hypothesis of innocence and the State’s burden of
proof in Final Instructions B and C.
Supplemental Appendix Vol. II at 43, 51. Hart now appeals.
Discussion and Decision
I. Standard of Review
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[13] Defendants who have exhausted the direct appeal process may challenge the
correctness of their convictions and sentences by filing a post-conviction
petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Post-conviction
proceedings are civil proceedings, and a defendant must establish his claims by
a preponderance of the evidence. Hampton v. State, 961 N.E2d 480, 491 (Ind.
2012). Because the defendant is now appealing from a negative judgment, to
the extent his appeal turns on factual issues, he must convince us that the
evidence as a whole leads unerringly and unmistakably to a decision opposite
that reached by the post-conviction court. Stevens, 770 N.E.2d at 745.
II. Matter to Proceed by Affidavit
[14] Hart claims that the post-conviction court erred in permitting the matter to
proceed by affidavit, claiming the court was required to conduct an evidentiary
hearing on his petition.
[15] Indiana Post-Conviction Rule 1(9)(b) provides that
In the event that petitioner elects to proceed pro se, the court at
its discretion may order the cause submitted upon affidavit. It
need not order the personal presence of the petitioner unless his
presence is required for a full and fair determination of the issues
raised at an evidentiary hearing.
[16] The decision to proceed by affidavit is best left to the post-conviction court’s
discretion. Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005), trans.
denied. Thus, we will review a post-conviction court’s decision to forego an
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evidentiary hearing for an abuse of discretion. Id. “An abuse of discretion
occurs if the decision is clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, or actual
deductions to be drawn therefrom.” McElfresh v. State, 51 N.E.3d 103, 107 (Ind.
2016).
[17] Here, the post-conviction court ordered the matter to proceed by affidavit upon
the State’s motion, following Hart’s decision to proceed pro se. Hart’s motions
requesting an evidentiary hearing acknowledged that evidence from trial and
appellate counsel was necessary to establish his claims and that the failure to do
so would allow the State and post-conviction court to infer their testimony
would not have been in his favor.
[18] Hart did not specifically allege that an evidentiary hearing was necessary and
how it would have assisted him in advancing his claims. Moreover, Hart did
not assert that he would not have been able to obtain evidence from either
counsel through affidavits to support his claims of ineffective assistance of
counsel. Because Hart failed to demonstrate that an evidentiary hearing was
necessary and how it would have benefited him, the post-conviction court did
not abuse its discretion in ordering the matter to proceed by affidavit. See Smith,
822 N.E.2d at 201-02 (observing that that the post-conviction court properly
determined that the matter could advance by affidavit when the petitioner made
only general assertions that he was denied an opportunity to present
unidentified witnesses in support of his ineffective assistance of counsel claim).
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III. Ineffective Assistance of Counsel
[19] To establish a post-conviction claim alleging a violation of the Sixth
Amendment right to effective assistance of counsel, a defendant must establish
before the post-conviction court the two components set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Overstreet v. State, 877 N.E.2d 144, 153 (Ind.
2007). First, a defendant must show that counsel’s performance was deficient.
Overstreet, 877 N.E.2d at 153. This requires a showing that counsel’s
representation fell below an objective standard of reasonableness and that
counsel made errors so serious that counsel was not functioning as “counsel”
guaranteed to the defendant by the Sixth Amendment. Id. Second, a defendant
must show that the deficient performance prejudiced the defense. Id. This
requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, meaning a trial whose result is reliable. Id. To
establish prejudice, a 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. Id. A reasonable probability is one that is sufficient to
undermine confidence in the outcome. Id. Further, counsel’s performance is
presumed effective, and a defendant must offer strong and convincing evidence
to overcome this presumption. Id.
A. Trial Counsel
[20] Hart claims that his trial counsel was ineffective for failing to raise the statutory
defense to the possession offense charged in I.C. § 35-48-4-16(b). Hart asserts
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that his trial counsel should have argued that his possession of the drugs was
outside of the 1000-foot radius of the park when he was initially observed and
chased by police.
[21] The choice of a defense is a matter of trial strategy. Id. at 154. Trial counsel
should be given deference in choosing a trial strategy which at the time and
under the circumstances, seems best. Bethel v. State, 110 N.E.3d 444, 450 (Ind.
Ct. App. 2018), trans. denied.
[22] Hart testified at trial admitting that he possessed the drugs only after he noticed
them in the police car following his arrest. Indeed, Hart consistently
maintained that he did not possess the drugs until after the arrest. Given Hart’s
own testimony regarding his possession of the pills, it was certainly a
reasonable strategy for his trial counsel to forego a defense that would have
conceded possession in or near the park. See, e.g., Morgan v. State, 755 N.E.2d
1070, 1076 (Ind. 2001) (holding that it is a reasonable strategic decision for trial
counsel to forego inconsistent defenses).
B. Appellate Counsel
[23] Hart claims that appellate counsel was ineffective for failing to challenge on
direct appeal the trial court’s refusal to give his tendered reasonable hypotheses
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of innocence instruction, and that counsel failed to adequately challenge the
sufficiency of the evidence. 1
[24] The standard of review for claims of ineffective assistance of appellate counsel
is the same as for trial counsel. Hollowell v. State, 19 N.E.3d 263, 269 (Ind.
2014). Additionally, ineffective assistance of appellate counsel claims fall into
three primary categories: 1) the denial of access to an appeal, 2) waiver of
issues, and 3) failure to present issues well. Id. at 270. To show deficient
performance for failing to raise an issue, we will consider whether the unraised
issue is significant and obvious from the face of the record and whether the
unraised issue is clearly stronger that the raised issue. Reed v. State 856 N.E2d
1189, 1195 (Ind. 2006). The inadequate presentation of certain issues is the
most difficult to advance because it requires the reviewing court to reexamine
the specific issue it has already adjudicated and determine whether the new
arguments would have made any marginal effect on the previous decision.
Hollowell, 19 N.E.3d at 270. Moreover, courts are presumed to know and apply
the law to cases they decide. Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012).
1
Hart alleges in his appellate brief that trial counsel was ineffective for not properly challenging the
sufficiency of the evidence and that trial counsel was ineffective for not tendering a reasonable theory of
innocence jury instruction. Appellant’s Brief at 9. However, Hart’s amended petition for post-conviction relief
alleged that appellate counsel was ineffective for those reasons. The post-conviction court addressed the
claims advanced in the amended petition. To the extent that Hart argues on appeal that his trial counsel was
ineffective with respect to these issues, they are waived. See Walker v. State, 843 N.E.2d 50, 58 n.2 (Ind. Ct.
App. 2006), trans. denied (holding that a claim of ineffective assistance of counsel on new grounds not raised
in the post-conviction relief petition is waived and not available for appellate review).
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[25] As for Hart’s claim that his appellate counsel was ineffective for failing to raise
the issue that the trial court erred in allegedly failing to properly instruct the jury
on the reasonable hypothesis of innocence, the record reflects that the jury was
so instructed. A portion of the trial court’s final instructions provided that
It is not necessary that facts be proved by direct evidence. Both
direct evidence and circumstantial evidence are acceptable as a
means of proof.
Where proof of guilt is by circumstantial evidence only, it must
be so conclusive and point so surely and unerringly to the guilt of
the accused as to exclude every reasonable hypothesis of
innocence.
Supplemental Appendix Vol II at 29, 30. Hart is not entitled to post-conviction
relief on this basis. 2
[26] As for Hart’s claim that his appellate counsel was ineffective for failing to
properly challenge the sufficiency of the evidence, Hart’s counsel argued on
direct appeal that the evidence was insufficient to support the conviction
because the State failed to establish that he possessed the drugs within 1000 feet
2
As an aside, we observe that even though the trial court provided such an instruction to the jury, it was not
required to do so, inasmuch as our Supreme Court has determined that such an instruction is required only
when the actus reus of the charged offense is established solely by circumstantial evidence. Hampton, 961
N.E2d 480, 491 (Ind. 2012); see also Harper v. State, 963 N.E.2d 653, 661-662 (Ind. Ct. App. 2012) (holding
that a reasonable theory of innocence instruction was not required where there was direct evidence of the
defendant’s possession in a vehicle and hotel room where contraband was located). In addition to the
circumstantial evidence that was presented here, the State also introduced the testimony of the police officers
establishing that Hart possessed the pills, and testimony of the city park planner and civil engineer regarding
the location of the park and the 1000-foot restricted zone, and the area where Hart was seen and
apprehended.
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of Akin Park. In rejecting Hart’s claim, this court concluded that Hart’s
argument was merely a request to reweigh the evidence and that “the jury was
free to disbelieve Hart’s self-serving testimony and draw a reasonable inference
from the State’s evidence that Hart possessed the [drugs] when the officers first
saw him at [the apartment building] within 1000 feet of Akin Park.” Hart, slip
op. at 17.
[27] Hart has merely reiterated the same contention here—as he did on direct
appeal—that the State failed to show that he possessed the drugs prior to his
arrest. That said, Hart has made no showing that his appellate counsel failed to
adequately present a challenge to the sufficiency of the evidence, and we will
not revisit the issue.
[28] Judgment affirmed.
Kirsch, J. and Vaidik, C.J., concur.
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