Keith A. Nemer v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 02 2015, 8:41 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John A. Goodridge Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana
Michael G. Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keith A. Nemer, December 2, 2015
Appellant-Petitioner, Court of Appeals Case No.
82A01-1411-CR-478
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Honorable David D. Kiely,
Appellee-Respondent Judge
Trial Court Cause No.
82C01-0903-FA-207
Mathias, Judge.
[1] Keith Nemer (“Nemer”) appeals from the Vanderburgh Circuit Court’s denial
of his petition for post-conviction relief. On appeal, Nemer argues that the post-
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conviction court erred when it concluded that Nemer was not denied effective
assistance of trial counsel.
[2] We affirm.
Facts and Procedural History
[3] In 2010, Nemer was convicted of two counts of Class A felony dealing in
methamphetamine and ordered to serve an aggregate thirty-four-year sentence
in the Department of Correction. Nemer appealed his convictions, and facts
relevant to the post-conviction proceedings were discussed in his direct appeal:
Sometime in January 2009, Sergeant Kurt Althoff of the
Evansville-Vanderburgh Drug Task Force received information
from a confidential source that Nemer was making
methamphetamine in his home. During the next two months,
Sergeant Althoff and other Task Force officers conducted
surveillance of Nemer’s residence. On March 2, 2009, Sergeant
Matt Schnell of the Vanderburgh County Sherriff’s Office was
surveilling the home and noticed an unfamiliar car parked in the
driveway. Later, two men exited Nemer’s house and got into that
car. Sergeant Schnell followed the vehicle to a garage where
another man briefly approached the window of the car before it
drove away. Officer John Townsend stopped the vehicle for a
traffic violation and searched the two men in the car, John Autry
and Logan Hofferman.
The police found methamphetamine in Autry’s boot and arrested
him. After being read his Miranda rights, Autry told Sergeant
Althoff that he purchased approximately one gram of
methamphetamine from Nemer earlier that day, and that he had
purchased methamphetamine from Nemer on at least two other
occasions. Autry told Sergeant Althoff that while he was in
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Nemer’s home he saw an oval-shaped bag that he thought had
more methamphetamine inside it. Hofferman told Sergeant
Schnell that he did not know anything about any
methamphetamine.
Next, the Drug Task Force and the Vanderburgh County
Sheriff’s Office executed a search warrant at Nemer’s residence.
Inside, Nemer was read his Miranda rights but chose to cooperate
with the police. He told the police that he had methamphetamine
and that some of the chemicals used to manufacture
methamphetamine were in the basement. When the officers
searched the basement, they found scales, coffee filters, over $600
in cash, and twenty grams of methamphetamine.
The State charged Nemer with two counts of class A felony
dealing in methamphetamine. Nemer filed a motion to suppress
the evidence, claiming that the police did not have probable
cause for the search warrant and that the statements he gave to
the police were involuntary. The trial court denied his motion.
During the trial, the evidence from the search was admitted
without any Fourth Amendment objections from Nemer. The
jury found Nemer guilty on both counts.
Nemer v. State, No. 82A05-1012-CR-800, WL 3795079 (Ind. Ct. App. Aug. 25,
2011).
[4] Nemer appealed his convictions and alleged that the trial court erred by
denying his motion to suppress evidence because the State’s search warrant was
not supported by probable cause and that the statements he gave to the police
were involuntary. Our court rejected Nemer’s arguments and affirmed his
convictions.
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[5] On June 25, 2012, Nemer filed a petition for post-conviction relief and alleged
that his trial counsel was ineffective. Specifically, Nemer alleged that trial
counsel should have objected to the admission of evidence obtained from the
search of his home that was previously the subject of a pre-trial motion to
suppress.1
[6] A hearing was held on Nemer’s petition for post-conviction relief on May 1,
2014. Only Nemer and his prior trial counsel, David Lamont (“Lamont”)
testified at the hearing. On October 13, 2014, the post-conviction court issued
findings of fact and conclusions of law denying Nemer’s requested relief.
Nemer now appeals.
Discussion and Decision
[7] Post-conviction proceedings are not “super appeals” through which convicted
persons can raise issues they failed to raise at trial or on direct appeal. McCary v.
State, 761 N.E.2d 389, 391 (Ind. 2002). Post-conviction proceedings instead
afford petitioners a limited opportunity to raise issues that were unavailable or
unknown at trial and on direct appeal. Davidson v. State, 763 N.E.2d 441, 443
(Ind. 2002). The post-conviction petitioner bears the burden of establishing
grounds for relief by a preponderance of the evidence. Henley v. State, 881
N.E.2d 639, 643 (Ind. 2008). Thus, on appeal from denial of post-conviction
1
Nemer also claimed in his petition for post-conviction relief that his trial counsel had been ineffective by
failing to conduct a full fact investigation, but withdrew this issue during the post-conviction relief hearing.
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relief, the petitioner stands in the position of one appealing from a negative
judgment. Id. To prevail on appeal from the denial of post-conviction relief, the
petitioner must show that the evidence as a whole leads unerringly and
unmistakably to a conclusion opposite than that reached by the post-conviction
court. Id. at 643-44.
[8] Where, as here, the post-conviction court makes findings of fact and
conclusions of law in accordance with Indiana Post-Conviction Rule 1(6), we
must determine if the court’s findings are sufficient to support its judgment.
Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct. App. 2011), aff’d on reh’g, 957
N.E.2d 962. Although we do not defer to the post-conviction court’s legal
conclusions, we review the post-conviction court’s factual findings under a
clearly erroneous standard. Id. Accordingly, we will not reweigh the evidence or
judge the credibility of witnesses and we will consider only the probative
evidence and reasonable inferences flowing therefrom that support the post-
conviction court’s decision. Id.
[9] Nemer claims that his trial counsel was ineffective because at trial, he failed to
renew his objection previously raised in the pre-trial motion to suppress
evidence. Nemer also asserts in his brief that the trial court erroneously denied
his motion to suppress because evidence of probable cause was not sufficient to
issue the search warrant. Not only was this issue not set forth in Nemer’s
petition for post-conviction relief, but our court determined that the issue was
waived in Nemer’s direct appeal because trial counsel raised no objection to the
admission of evidence at trial. Accordingly, this issue is not available for post-
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conviction review because it is barred by the doctrine of res judicata. See Jervis v.
State, 28 N.E.3d 361, 368 (Ind. Ct. App. 2015), trans. denied (citing Ben-Yisrayl v.
State, 738 N.E.2d 253, 258 (Ind. 2000)).
[10] Our supreme court has summarized the law regarding claims of ineffective
assistance of trial counsel as follows:
A defendant claiming a violation of the right to effective
assistance of counsel must establish two components set forth in
Strickland v. Washington, 466 U.S. 668 (1984). First, the defendant
must show that counsel’s performance was deficient. This
requires a showing that counsel’s representation fell below an
objective standard of reasonableness, and that the errors were so
serious that they resulted in a denial of the right to counsel
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced
the defense. 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. A reasonable probability is probability sufficient to
undermine confidence in the outcome.
Counsel is afforded considerable discretion in choosing strategy
and tactics, and we will accord those decisions deference. A
strong presumption arises that counsel rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment. The Strickland Court
recognized that even the finest, most experienced criminal
defense attorneys may not agree on the ideal strategy or the most
effective way to represent a client. Isolated mistakes, poor
strategy, inexperience, and instances of bad judgment do not
necessarily render representation ineffective. The two prongs of
the Strickland test are separate and independent inquiries. Thus,
[i]f it is easier to dispose of an ineffectiveness claim on the
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ground of lack of sufficient prejudice. . . that course should be
followed.
Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001) (citations and
quotations omitted).
[11] Nemer’s prior trial counsel, Lamont, filed a pre-trial motion to suppress
evidence obtained during the search of Nemer’s home on the basis that the
State’s search warrant was not supported by probable cause, but the trial court
denied this motion. At trial, Nemer’s newly hired counsel, Mark Phillips
(“Phillips”), did not object to admission of this evidence. At Nemer’s post-
conviction hearing, Nemer did not provide testimony or an affidavit from
Phillips regarding his trial strategy. When counsel is not called as a witness to
testify in support of a petitioner’s arguments, the post-conviction court may
infer that counsel would not have corroborated the petitioner’s allegations.
Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010) (citing Culvahouse v.
State, 819 N.E.2d 857, 863 (Ind. Ct. App. 2004)).
[12] Because Nemer did not provide testimony or an affidavit from Phillips, we have
no evidence to evaluate his trial strategy and performance. In its discretion, the
post-conviction court inferred that Phillips would have testified that he
evaluated Nemer’s suppression issues and chose not to object to the admission
of evidence for strategic reasons. “[T]rial strategy is not subject to attack
through an ineffective assistance of counsel claim, unless the strategy is so
deficient or unreasonable as to fall outside of the objective standard of
reasonableness.” Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998). Counsel is
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presumed to have rendered adequate assistance, and it is Nemer’s burden to
establish otherwise. Lamont testified at Nemer’s post-conviction hearing that
on some occasions not objecting to the admission of evidence at trial would be
reasonable. Nemer has not met his burden to overcome that Phillips’s trial
strategy was unreasonable, and we conclude that Phillips was effective as trial
counsel.
[13] Although we could dispose of Nemer’s ineffective assistance of trial counsel
claim based on reasonable performance, Nemer also claims that he was
prejudiced when Phillips did not object to the admission of evidence, which
failed to preserve the issue for appellate review. Nemer contends that because
the issue was waived, our court applied the fundamental error standard of
review instead of the more favorable abuse of discretion standard of review.
However, on direct appeal, our court concluded that Nemer waived the
fundamental error argument because he only raised the issue for the first time in
his reply brief. Our court determined, “[e]ven if we were to consider the
[fundamental error] issue, we do not believe that the admission of the evidence
was fundamental error.” Nemer v. State, No. 82A05-1012-CR-800, 952 N.E.2d
888 (Ind. Ct. App. August 25, 2011).
[14] When a petitioner brings an ineffective assistance claim based on trial counsel’s
failure to make an objection, the petitioner must demonstrate that the trial court
would have sustained a proper objection and that failure to object resulted in
prejudice. Glotzbach v. State, 783 N.E.2d 1221, 1224 (Ind. Ct. App. 2003). To
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determine whether an objection to the admissibility of evidence based on the
search would have been sustained, we must look to Sergeant Althoff’s affidavit.
[15] Nemer argues that Phillips should have objected to the admission of evidence
from the search of Nemer’s home on the basis that the information provided in
the affidavit to obtain the search warrant lacked probable cause. “Probable
cause” for issuing a search warrant “is a fluid concept incapable of precise
definition and must be decided based on the facts of each case.” Cassady v. State,
934 N.E.2d 1181, 1188 (Ind. Ct. App. 2010), trans. denied. The task of the
magistrate issuing the search warrant is simply to make a practical, common-
sense decision whether, given all of the circumstances set forth in the affidavit,
there is a fair probability that contraband or evidence of a crime will be found in
a particular place. Jackson v. State, 908 N.E.2d 1140, 1142 (Ind. 2009).
[16] The duty of a reviewing court is to determine whether the magistrate had a
“substantial basis” for concluding that probable cause existed. State v. Spillers,
847 N.E.2d 949, 953 (Ind. 2006). A “substantial basis” requires that we focus
on whether reasonable inferences drawn from the totality of the evidence
support the determination of probable cause, giving significant deference to the
magistrate’s determination. Id. In determining whether an affidavit provided
probable cause for the issuance of a search warrant, doubtful cases are to be
resolved in favor of upholding the warrant. Perez v. State, 27 N.E.3d 1144, 1153
(Ind. Ct. App. 2015) (citing Mehring v. State, 884 N.E.2d 371, 376-77 (Ind. Ct.
App. 2008)).
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[17] The magistrate issued the search warrant based on information in Sergeant
Althoff’s affidavit, which he received from a confidential informant over the
span of two months, indicating that Nemer was manufacturing
methamphetamine in his home. On March 2, 2009, officers observed two men
exit Nemer’s home in an unfamiliar vehicle. Officers stopped the vehicle for a
traffic infraction, and one of the men, another confidential informant, John
Autry, admitted to purchasing methamphetamine from Nemer that day and on
two prior occasions. The officers also found 4.9 grams of methamphetamine in
Autry’s boot. Based on the totality of the evidence, the magistrate had a
substantial basis to determine that probable cause existed to issue the search
warrant. Therefore, an objection based on the admissibility of this evidence
would not have been sustained, and Nemer has not shown that he was
prejudiced.
[18] For all of these reasons, we conclude that Nemer has not established that his
trial counsel was constitutionally ineffective for failing to object to the
admission of evidence obtained in the search of his home at trial. Therefore, we
affirm the post-conviction court’s order denying Nemer’s petition for post-
conviction relief.
[19] Affirmed.
Baker, J., and Bailey, J., concur.
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