Ryan T. McMullen 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 Jun 27 2018, 9:35 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ryan T. McMullen, June 27, 2018
Appellant-Defendant, Court of Appeals Case No.
27A02-1710-PC-2555
v. Appeal from the Grant Circuit
Court
State of Indiana, The Honorable Mark E. Spitzer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
27C01-1112-PC-9
Mathias, Judge.
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[1] Ryan T. McMullen (“McMullen”) appeals the post-conviction court’s denial of
his petition for post-conviction relief. McMullen raises three issues for our
review, which we consolidate and restate as:
I. Whether McMullen received ineffective assistance of trial counsel;
and
II. Whether McMullen received ineffective assistance of appellate
counsel.
[2] We affirm.
Facts and Procedural History
[3] In our memorandum decision in McMullen’s direct appeal, a panel of this court
set forth the facts and initial procedural history underlying McMullen’s
convictions as follows:
Greentree West Apartments (“Greentree”) is a public housing
complex in Marion with approximately fifty units. In January
2009, Julie Taylor, Greentree’s manager, distributed fliers to the
residents advising them of a future pesticide treatment in the
units. The lease agreements informed the residents that pesticide
treatments would be conducted two times per year. On January
8, 2009, Steve Gause, a maintenance employee at Greentree, was
treating Apartment 410 with pesticides and noticed a loaded
assault weapon in one of the kitchen cabinets. Gause then
contacted a detective with the Joint Effort Against Narcotics
Drug Task Force (“the JEAN Team”) and reported his
observation of the firearm.
Marion Police Detective John Kauffman received an e-mail,
warning police officers of a potential safety issue if they were
called to Apartment 410. Detective Kauffman knew that Janita
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Glasser lived at the apartment and that she was the mother of
McMullen’s children. Detective Kauffman was aware that
McMullen had been linked to previous incidents that involved
weapons. Detective Kauffman obtained a mug shot of McMullen
and showed it to Gause, who confirmed that McMullen had been
staying at the apartment. Detective Kauffman discovered that
there was an active warrant for McMullen’s arrest in an unrelated
matter.
Thereafter, JEAN team members went to Greentree to conduct
surveillance and serve the arrest warrant on McMullen.
McMullen’s vehicle was parked near Apartment 410, and
Detective Kauffman saw several individuals go into that
apartment for short periods of time. Based on his experience as a
police officer, Detective Kauffman believed that such conduct
was indicative of drug activity. Various members of the JEAN
Team were also familiar with McMullen’s previous drug and
weapons charges. At some point, Detective Kauffman observed a
known drug user leave the apartment. Detective Kenneth Allen
stopped her vehicle near Greentree and explained that the police
were looking for “Pat.” Tr. p. 79. The individual said that she
had just left Greentree and had spoken with “Ryan” in
Apartment 410. Tr. p. 79. Although the woman tried to purchase
crack cocaine from “Ryan,” who was subsequently identified as
McMullen, he refused to sell her any drugs because she had “too
much drama.” Tr. p. 295.
Several police officers then approached the apartment and one of
the detectives looked through the front window blinds that were
partially open. Detective Allen looked through the window and
saw McMullen sitting on the couch. Thereafter, a detective
knocked on the door, held up his police badge, and said, “Ryan,
this is the police. We have a warrant for your arrest. Come to the
door. Open the door now.” Tr. p. 64. McMullen got up from the
couch, released the blinds, stepped away from the window, and
moved toward the kitchen where Gause had seen the weapon.
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Tr. at 64–65. The police officers then entered the apartment and
took McMullen into custody. Detective Kauffman smelled
marijuana and saw an infant on the couch. After releasing the
infant to her mother, the officers obtained a search warrant for
the apartment.
During the course of the search, the officers recovered nearly
eighteen grams of cocaine, one kilogram of marijuana, and a
nine[-]millimeter handgun. On May 4, 2009, the State charged
McMullen as follows:
Count I, Possession of Cocaine, a class A felony
Count II, Dealing in Cocaine, a class B felony
Count III, Neglect of a Dependent, a class C felony
Count IV, Possession of Cocaine, a class C felony
Count V, Possession of marijuana, a class D felony
Count VI, Habitual Offender
McMullen’s motion to suppress that he filed on July 28, 2010,
alleged that the police officers’ entry into the apartment
4. Was unreasonable and in violation of the rights and
privileges of citizens secured under the 4th and 14th
Amendments to the United States Constitution and Article
1, Section 11 of the Indiana Constitution, because the drug
task force officers lacked the valid authority of a search
warrant to search . . . Glasser’s apartment for defendant,
and defendant had a reasonable expectation of privacy in
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the premises as a guest and had standing under the Indiana
Constitution as a guest of . . . Glasser to assert this claim.
The arrest warrant did not provide authority to enter . . .
Glasser’s apartment to search for a non-resident.
***
6. Drug task force officers violated the rights and privileges
secured by Article 1, Section 11 of the Indiana
Constitution when an officer left the porch or walkway to
look in the window of [Apartment 410] because defendant
had a reasonable expectation of privacy from spying from
an area not a public way and therefore, a part of the secure
area of the apartment.
7. As a result of these acts that violate defendant’s right to
privacy secured by [the] 4th and 14th Amendments to the
United States Constitution and Article 1, Section 11 of the
Indiana Constitution, the fruits of the illegal entry must be
suppressed as having been gained by the benefit of the
illegal entry, notwithstanding the purported authority of
the subsequently acquired search warrant . . . since the
authority of the search warrant was based on probable
cause gained from the illegal entry.
8. No officer knowledgeable in the scope of the authority
granted by an arrest warrant would have a good faith belief
in the reasonableness of the entry to [the apartment] to
search for defendant, neither would such an officer
reasonably rely on the warrant subsequently issued, which
should not have issued, because the probable cause for the
warrant was based on an illegal entry of the premises as is
apparent in the text of the transcript of the probable cause
hearing.
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Appellant’s App. pp. 38–40.
Following a hearing, the trial court denied McMullen’s motion to
suppress. The trial court determined, inter alia, that Gause was
employed at Greentree and was acting as a private citizen when
he entered the apartment. Gause’s entry into the apartment was
not conducted at the direction of the police or with the intent to
assist law enforcement agents. Thus, Gause’s discovery of the
weapon was not the result of an unreasonable search in violation
of the Fourth Amendment.
The trial court also concluded that the police officers’ entry into
the apartment was justified because the arrest warrant for
McMullen granted them the implied authority to enter the
residence and apprehend him. As a result, it was determined that
the marijuana and cocaine seized pursuant to the subsequently
issued search warrant were properly admitted into evidence.
At the conclusion of McMullen’s jury trial on August 12, 2010,
McMullen was convicted of possession of cocaine, a class A
felony, possession of cocaine, a class C felony, and possession of
marijuana, a class D felony. The trial court vacated the class C
felony conviction in light of double jeopardy concerns.
At the sentencing hearing that was conducted on September 10,
2010, the trial court identified McMullen’s lengthy criminal
history and his failure to report for incarceration after being
released from jail as aggravating factors. The trial court
recognized the undue hardship that McMullen’s incarceration
would have on his dependents as the sole mitigating
circumstance. After determining that the aggravating factors
outweighed the mitigating circumstance, the trial court sentenced
McMullen to fifty years on the cocaine possession charge and to
a concurrent term of three years for possession of marijuana.
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McMullen v. State, 27A02-1009-CR-1165, 2011 WL 2507057, at *1–3 (Ind. Ct.
App. June 23, 2011) (footnotes omitted), trans. denied.
[4] McMullen argued on direct appeal that the trial court improperly admitted the
cocaine and marijuana into evidence during trial because Gause was acting as a
police informant, and he illegally entered the apartment. Id. at *3. McMullen
also claimed that his fifty-year sentence was inappropriate under Indiana
Appellate Rule 7(B). Id. at *5. A panel of this court rejected McMullen’s
arguments and affirmed his convictions and sentence. Id. at *6.
[5] On December 7, 2011, McMullen petitioned for post-conviction relief. He
subsequently amended his petition on February 9, 2017, in which he claimed:
(1) ineffective assistance of trial counsel; and (2) ineffective assistance of
appellate counsel. An evidentiary hearing was held on July 25. On October 31,
the post-conviction court issued an order in which it denied McMullen’s
petition for post-conviction relief.
[6] McMullen now appeals.
Post-Conviction Standard of Review
[7] The post-conviction petitioner bears the burden of establishing grounds for
relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,
562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a
petition for post-conviction relief, the petitioner stands in the position of one
appealing from a negative judgment. Id. On appeal, we do not reweigh evidence
nor judge the credibility of witness; therefore, to prevail, McMullen must show
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that the evidence in its entirety leads unerringly and unmistakably to a
conclusion opposite that reached by the post-conviction court. Id. 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 do not defer to the
court’s legal conclusions, but the "findings and judgment will be reversed only
upon a showing of clear error–that which leaves us with a definite and firm
conviction that a mistake has been made." Henley v. State, 881 N.E.2d 639, 644
(Ind. 2008).
Ineffective Assistance of Trial Counsel
[8] McMullen contends that his trial counsel, Joe Keith Lewis (“Lewis”), was
ineffective for several reasons. A claim of ineffective assistance of trial counsel
requires a showing that: (1) Lewis’s performance was deficient by falling below
an objective standard of reasonableness; and (2) that the deficient performance
prejudiced McMullen such that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Failure to satisfy
either of the two elements will cause the claim to fail. French v. State, 778
N.E.2d 816, 824 (Ind. 2002). When it is easier to dispose of an ineffectiveness
claim on the lack of prejudice, then this is the course we should follow. Trujillo
v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011). Moreover, “[i]solated
mistakes, poor strategy, or bad tactics do not necessarily amount to ineffective
assistance of counsel.” Herrera v. State, 679 N.E.2d 1322, 1326 (Ind. 1997)
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(citations omitted). We address each of McMullens’s claims as to why Lewis
was ineffective in turn.
I. Failure to Call Witnesses
[9] McMullen first claims that Lewis was ineffective at trial for failing to call three
witnesses during trial: Stephen Gause, James Johnson, and Gerald Griffin. Our
supreme court has explained that “[a] decision regarding what witnesses to call
is a matter of trial strategy which an appellate court will not second-guess,
although a failure to call a useful witness can constitute deficient performance.”
Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998) (citation omitted). Trial
counsel’s choice of which witnesses to call “is the epitome of a strategic
decision.” Wisehart v. State, 693 N.E.2d 23, 48 n.26 (Ind. 1998). Thus, we will
not find Lewis ineffective for failure to call a particular witness absent a clear
showing of prejudice. Ben-Yisrayl v. State, 729 N.E.2d 102, 108 (Ind. 2000). It is
McMullen’s burden on appeal to offer evidence as to who the witnesses were
and what their testimony would have been. Lee v. State, 694 N.E.2d 719, 722
(Ind. 1998).
A. Stephen Gause
[10] McMullen argues that Lewis was ineffective for failing to call Stephen Gause
(“Gause”) during trial because: (1) Lewis referenced Gause’s expected
testimony during his opening statement; and (2) Gause would have testified
that when he opened the kitchen cabinet in the apartment, he only saw a
firearm. McMullen specifically contends that this testimony “would have
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supported the defense theory that someone other than McMullen placed the
cocaine in the cabinet.” Appellant’s Br. at 27.
[11] Lewis remarked during his opening statement that, “Mr. Steve Gause who is a
Greentree employee, uh, is in the apartment spraying for bugs . . . [a]nd he
opens the cabinet and he notices the firearm described in the cabinet and that’s
all he sees. And that’s at one p.m. And there’s nothing else in that cabinet
except the firearm.” Trial Tr. Vol. 1, p. 190. We initially note that Lewis never
promised testimony from Gause as McMullen alleges. See Appellant’s Br. at 28;
Myers v. State, 33 N.E.3d 1077, 1093 (Ind. Ct. App. 2015) (counsel was not
ineffective for telling the jury that the defense would present certain evidence
during trial, and then failing to do so), trans. denied. And Lewis explained
during the evidentiary hearing that he did not consider calling Gause as a
defense witness because he “would’ve wanted him on cross examination and
not on direct.” PCR Tr. p. 9. Lewis was concerned that if the State was able to
cross-examine Gause, it would be able to elicit testimony that would be harmful
to McMullen. Id. at 10. Specifically, Lewis did not want the State to be able to
question Gause about “why he was interested in this particular apartment.” Id.
[12] Moreover, the mere fact that Gause would have testified that he saw only the
firearm in the cabinet does not demonstrate that McMullen did not place the
marijuana and cocaine in the cabinet later in the day. Gause was in the
apartment around 1:00 p.m., and officers did not search the apartment and find
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the marijuana and cocaine until hours later.1 The search took place after officers
had conducted surveillance and watched a known “crack cocaine abuser” go in
and out of the apartment. Trial Tr. Vol. 1, p. 62–63. And McMullen did not
even challenge his marijuana conviction because his DNA and fingerprints
were found on the packaging inside the cabinet where the firearm was also
located.
[13] For these reasons, we cannot say that Lewis’s decision not to call Gause was
unreasonable, and we will not second guess this decision. Brown, 691 N.E.2d at
447. And even if Lewis was deficient for failing to call Gause during trial, for
the reasons listed above, we cannot say that doing so would have changed the
outcome of McMullen’s trial. Accordingly, Lewis was not ineffective for failing
to call Gause as a witness.
B. James Johnson
[14] McMullen next argues that Lewis was ineffective for failing to call James
Johnson (“Johnson”) during trial. Specifically, McMullen contends that
Johnson would have testified that he was at the apartment approximately two
hours after Gause, and Johnson saw the firearm and a bag of marijuana in the
cabinet—no cocaine. Johnson also would have testified that another individual
in the apartment repeatedly opened the door to the cabinet. At the evidentiary
1
McMullen was arrested around 6:35 p.m., and officers searched the apartment at approximately 7:15 p.m.
Trial Tr. Vol. 2, p. 378.
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hearing, Lewis was asked if he spoke with anyone at the apartment the day of
the police search, and he responded, “No I did not conduct interviews[,] and I
should’ve done that.” PCR Tr. p. 11.
[15] We do not need to determine whether Lewis performed deficiently by falling to
call Johnson as a witness because McMullen has failed to establish that he was
prejudiced by the decision for three reasons. First, Johnson’s alleged testimony
would not have shown that someone other than McMullen put the cocaine in
the cabinet. Johnson did not state that he saw anyone with cocaine or that he
saw anyone put anything into the cabinet. His testimony simply would have
been cumulative of testimony Lewis elicited during trial that there were at least
five other people who visited the apartment on the day of McMullen’s arrest.
Trial Tr. Vol. 2, p. 424. Second, Johnson is McMullen’s cousin, and it is likely
that the State would have been able to attack his favorable testimony as biased.
And third, Johnson’s testimony would have placed him inside the apartment
around 3:00 or 3:30 p.m., and Jasmine Davis testified during trial that the group
only stayed for around twenty minutes. Id. at 424–25. The police did not take
McMullen into custody until a little after 6:30 p.m. that evening, and thus, even
assuming Johnson’s testimony is true, there was plenty of time during which
McMullen could have placed the cocaine in the cabinet next to the marijuana
that had his DNA and fingerprints on it. For these reasons, we find that there is
no reasonable probability that Johnson’s testimony would have changed the
outcome of McMullen’s trial. Accordingly, Lewis was not ineffective for failing
to call Johnson as a witness.
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C. Gerald Griffin
[16] McMullen next contends that Lewis was ineffective during trial for failing to
call Gerald Griffin (“Griffin”) as a witness. Specifically, Griffin signed an
affidavit which indicates that he would have testified that:
On January 8, 2009 [Garrett] asked me to give her a ride to the
Greentree Apartment complex. She said she wanted to confront
[] McMullen about a rumor that had gotten back to her husband,
[C.G.]. She did not say anything about wanting to buy drugs
from [McMullen]. [Garrett] went inside the apartment and came
out a few minutes later. When she came out she did not say
anything about trying to buy drugs from [McMullen]. She said
[McMullen] told her to leave because he ([McMullen]) did not
want to be involved in her marriage.
PCR Ex. Vol., McMullen’s Ex. 15. At trial, Garrett testified that she went to
see McMullen on January 8, 2009, because she was trying to get cocaine. Trial
Tr. Vol. 2, pp. 294–95. McMullen argues that Griffin’s testimony could have
been used “to challenge Garrett’s credibility regarding her reason for visiting the
apartment.” Appellant’s Br. at 33. Lewis was asked at the evidentiary hearing if
he spoke with Griffin, and Lewis responded, “No I should’ve interviewed
him[,] and I did not do that.” PCR Tr. p. 11.
[17] We do not need to determine whether Lewis performed deficiently by failing to
call Griffin as a witness because McMullen has failed to establish that he was
prejudiced by the decision. Again, Garrett testified that she went to see
McMullen to purchase cocaine. Griffin’s testimony that he did not hear Garrett
say anything about drugs does nothing to refute her statement at trial.
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Moreover, even if Griffin’s testimony is true—that Garrett went to McMullen’s
that day to squash a rumor—this does not undermine her testimony that she
was also looking to buy cocaine from McMullen. Simply put, we find that there
is no reasonable probability that Griffin’s testimony would have changed the
outcome of McMullen’s trial. Accordingly, Lewis was not ineffective for failing
to call Griffin as a witness.
II. Failure to Object to Evidence
[18] McMullen next argues that Lewis was ineffective at trial for failing to object to
several pieces of evidence during trial. Our supreme court has explained that
“in order to prevail on a claim of ineffective assistance due to the failure to
object, the defendant must show an objection would have been sustained if
made.” Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007). And if the objection
would have been sustained, McMullen still must show that but for Lewis’s
failure to object, the result of his trial would have been different. Id. at 152.
A. Testimony about an Arrest Warrant
[19] McMullen first asserts that Lewis was ineffective at trial for failing to renew an
objection made during a pretrial hearing regarding an outstanding warrant for
McMullen’s arrest in an unrelated case.
[20] Prior to trial, Lewis filed a motion to suppress the evidence seized from the
apartment, and the State filed a notice of intent to use Indiana Evidence Rule
404(b) evidence. Rule 404(b) provides in relevant part, “[e]vidence of a person's
character or character trait is not admissible to prove that on a particular
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occasion the person acted in accordance with the character or trait.” Here, the
State sought to introduce evidence that McMullen had an outstanding arrest
warrant on January 8, 2009. The trial court held a hearing on McMullen’s
motion to suppress and the State’s intent to introduce evidence of the warrant.
During the hearing, Lewis objected to the evidence related to the outstanding
warrant. Appellant’s Trial App. p. 154. However, in a written order, the trial
court overruled Lewis’s objection.2
[21] During trial, an officer was asked if he was aware McMullen had a warrant for
his arrest, Lewis then interjected:
Your Honor, at this time, I’d like to state an objection for the
record as to any evidence as to this investigation that flows as a result
of, uh, the subject matter that we discussed in the Motion to Suppress.
Specifically all the evidence that would be developed as a result
of any search or any investigation at Greentree Apartments, number
410, by law enforcement officers as a result of the conduct of Mr.
Gause was the security man slash maintenance man at the
apartment complex. And I request that the testimony and
arguments, uh, at our pre-trial hearing be incorporated by referencing
this motion, uh, in order to avoid repeating myself I would like to
have this motion shown as a continuing objection.
Trial Tr. Vol. 1, p. 195 (emphases added). The trial court then recognized
Lewis’s statement as a continuing objection, and it overruled it. Id. at 195–96.
2
To the extent McMullen argues that the trial court erred when it allowed the State to introduce evidence of
McMullen’s arrest warrant, see Appellant’s Br. at 35–36, this issue is waived because it was available at the
time he filed his direct appeal. Timberlake v. State, 753 N.E.2d 591, 597–98 (Ind. 2001).
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Based on Lewis’s statement above, he did make a continuing objection to
evidence of McMullen’s arrest warrant since it was covered at the hearing on
the motion to suppress.3 Accordingly, Lewis’s performance was not deficient,
and he was therefore not ineffective when he issued a continuing objection at
trial relating to McMullen’s arrest warrant.
[22] McMullen also argues that Lewis erred in failing to ask for a limiting
instruction regarding the arrest warrant.4 Although requesting a limiting
instruction would have been the preferred practice, we cannot say that its
absence rises to the level of prejudice necessary to constitute ineffective
assistance of counsel. See McCullough v. State, 973 N.E.2d 62, 78–79 (Ind. Ct.
App. 2012), trans. denied. The jury’s knowledge that McMullen had an
outstanding arrest warrant has nothing to do with the crimes he was convicted
of. It simply provided the jury with additional context as to why McMullen was
arrested on January 8, 2009. McMullen has failed to persuade us that there is a
reasonable probability that but for the absence of a jury instruction limiting the
use of evidence regarding the arrest warrant, the result of his trial would have
been different. Accordingly, Lewis was not ineffective for failing to request a
limiting instruction regarding the arrest warrant at trial.
3
We acknowledge that during the evidentiary hearing, Lewis noted that he did not renew the objection at
trial because he thought “it would be regarded as harmless error and it would just be an empty objection[.]”
PCR Tr. p. 12. However, for the reasons stated above, we conclude that Lewis’s objection at trial sufficiently
covered the arrest warrant evidence.
4
The post-conviction court did not explicitly address this issue in its conclusions of law.
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B. Testimony about Prior Drug Sales
[23] McMullen next contends that Lewis was ineffective at trial for failing to object
to Garrett’s testimony regarding alleged prior drug sales under Indiana
Evidence Rule 404(b). McMullen alleges that the State was able to present
“testimony from [Garrett], implying that she had purchased illegal drugs from
McMullen in the past.” Appellant’s Br. at 38. We disagree.
[24] Garrett was not asked at trial if she purchased cocaine on a prior occasion, and
she did not testify that she ever purchased cocaine from McMullen on the prior
occasion. Garrett’s testimony is as follows:
[State]: Had you been at [the apartment] on one or more
occasions?
[Garrett]: I went one other time.
[State]: One other time. Uh, did you always meet with the
defendant, Ryan McMullen?
[Garrett]: Yes
Trial Tr. Vol. 2, p. 296. Garrett testified previously that she was addicted to
cocaine in 2009 and that she went to McMullen’s on January 8, 2009, to
purchase cocaine from McMullen. However, her testimony that she met
McMullen one other time at the same apartment is not objectionable.
[25] Evidence Rule 404(b) “is designed to prevent the jury from assessing a
defendant’s present guilt on the basis of his past propensities, the so called
‘forbidden inference.’” Hicks v. State, 690 N.E.2d 215, 218–19 (Ind. 1997). But
we have previously explained that “evidence which creates a mere inference of
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prior bad conduct does not fall within the purview of” Rule 404(b). Dixson v.
State, 865 N.E.2d 704, 712 (Ind. Ct. App. 2007), trans. denied. Here, the only act
that Garrett testified to is meeting McMullen at the apartment on a prior
occasion. There is no indication that Garrett bought cocaine from McMullen
on that prior occasion, or that she went there for any other illegal purpose. See
Rogers v. State, 897 N.E.2d 955, 960 (Ind. Ct. App. 2008), trans. denied.
Therefore, Garrett’s challenged testimony does not run afoul of Rule 404(b),
and Lewis was not ineffective for failing to object to admissible evidence. See
Overstreet, 877 N.E.2d at 155.
C. McMullen’s Jail Phone Calls and Letter
[26] McMullen next contends that Lewis was ineffective at trial for failing to object
under Rule 404(b) to: (1) a recorded jail phone call in which McMullen
references a pending charge for failure to appear; (2) a recorded jail phone call
in which McMullen references a warrant for his arrest; and (3) a letter written
by McMullen from jail four years prior to the current offense in which he
discusses his plan to stop selling cocaine and to focus on selling only marijuana
and ecstasy moving forward.
[27] Regarding the jail phone calls, McMullen specifically argues that the portions of
the calls referencing a pending charge and an outstanding warrant “were
irrelevant and inadmissible under Rule 404(b).” Appellant’s Br. at 39. In its
order, the post-conviction court noted that Lewis’s failure to object under Rule
404(b) was not ineffective because “the jury already kn[e]w that McMullen had
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a warrant, because that was the reason for his arrest at the Greentree address,”
and that the reference to a pending charge was admissible because it “did not
specifically identify any charges or convictions.” Appellant’s PCR App. p. 213.
[28] Both challenged portions of McMullen’s jail house calls took place when he
called Glasser on the night of his arrest. The challenged excerpts from the
phone calls5 are as follows:
[McMullen]: They ain’t brought me no charges yet though. All I
got is a failure to appear but they got (unclear)
consent cause they weren’t suppose[d] to kick that
door in. You know what I’m saying?
Trial Ex. Vol., State’s Ex. 14, p. 2.
[McMullen]: Right now they got me charged with the warrant.
You know what I’m sayin’? Where I gotta do the
eight and a half months or whatever.
Id. at State’s Ex. 15, p. 4.
[29] The State argues that McMullen’s statements “were the statements of a party
opponent,” and thus, “[t]here was a legal basis for their admission.” Appellee’s
Br. at 22. The State is incorrect. Indiana Evidence Rule 801(d)(2) explains that
a “statement [] offered against an opposing party” that “was made by the
5
We note that at trial Lewis objected to the jury receiving a transcript of the phone calls. See Trial Tr. Vol. 2,
pp. 386, 390. Although the trial court overruled the objection, it did not allow the jury to take the transcripts
back to the jury room, and it issued the jury a limiting instruction that the transcript was solely provided to
assist in listening to the tape. Id. at 387, 390.
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party,” is not hearsay. However, McMullen makes no claim that his statements
in the jail house calls were hearsay. Rather, McMullen argues that Lewis was
ineffective for failing to object because he asserts that the calls constituted
inadmissible evidence under Rule 404(b). A statement made by a party may still
be inadmissible under Rule 404(b) or Indiana Evidence Rule 402 (“Irrelevant
evidence is not admissible.”).
[30] However, we cannot say that Lewis’s failure to object to the phone calls
amounts to ineffective assistance of counsel. First, the jury already knew that
there was a warrant for McMullen’s arrest. See Trial Tr. Vol. 1, pp. 185, 186,
195; Vol. 2, pp. 270, 376. Therefore, even if Lewis had objected to the jury
hearing about McMullen’s warrant, it was cumulative and likely would have
been overruled. See Overstreet, 877 N.E.2d at 155.
[31] Moreover, the jury subsequently heard testimony that McMullen’s outstanding
warrant was for a failure to appear. Trial Tr. Vol. 2, p. 399. This fact did
nothing more than provide context for what the jury already knew, and it does
nothing to undermine McMullen’s conviction on completely unrelated evidence
and charges. For these reasons, McMullen has failed to persuade us that there is
a reasonable probability that if Lewis had objected under Rule 404(b) or Rule
402 to his statements in a jail house phone call, the result of his trial would have
been different.
[32] McMullen also asserts that Lewis was ineffective for failing to object to the
admission of an undated letter written by McMullen and found in Glasser’s
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apartment. Specifically, McMullen contends that the information contained in
the letter “was irrelevant and inadmissible under Evidence Rule 404(b).”
Appellant’s Br. at 40. The State responds that the letter was relevant because it
contained references to future acts and that any information relating to
McMullen’s past drug use was admitted elsewhere during trial and was thus
merely cumulative.
[33] Glasser testified that the letter in question was written four years earlier,6 Trial
Tr. Vol. 1, p. 228, and in it McMullen writes, “I am gone [sic] get a job and sell
weed and x. No more cocaine.” Trial Ex. Vol., State’s Ex. 13. Although the
letter was allegedly written four years earlier, McMullen references future drug-
related activity which is relevant to the offenses for which he was charged in the
case before us. Further, the challenged statement in the letter actually supports
McMullen’s theory that the cocaine was not his, because he stated that he was
no longer going to sell cocaine.
[34] McMullen’s statement in the letter was also cumulative of other evidence
presented to the jury.7 The jury heard evidence that McMullen sold marijuana
in the past and that officers smelled the odor of marijuana upon entering
Glasser’s apartment on the day of McMullen’s arrest. See Tr. Vol. 1, pp. 186,
6
It appears that McMullen wrote the letter to Glasser from jail.
7
In its brief, the State alleges that “the fact that [McMullen] alluded to this sale of drugs in one
communication and the warrant in another could not have undermined confidence in the outcome of his
proceeding.” Appellee’s Br. at 22 (citing Trial Tr. Vol. 1, pp. 61–66, 79–80). However, six of the State’s nine
citations in support of its claim are from the trial court’s hearing on the motion to suppress and the intent to
use Rule 404(b) evidence at trial, and thus, this evidence was never presented to the jury.
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189, 198; Vol. 2, pp. 270, 376–77. And Garrett testified that she was at
Glasser’s apartment on January 8, 2009, to purchase cocaine from McMullen.
See Tr. Vol. 2, pp. 295, 297. For these reasons, McMullen has failed to persuade
us that there is a reasonable probability that if Lewis had objected to the
admission of the letter, the result of his trial would have been different.
Accordingly, Lewis was not ineffective for failing to object to the jail house
phone calls or the letter at trial.
D. Testimony from Mark Stefanatos
[35] McMullen next argues that Lewis was ineffective at trial for failing to object to
testimony from Marion Police Department Sergeant Mark Stefanatos
(“Sergeant Stefanatos”) that: “(1) drug dealers typically possess digital scales;
(2) the amount of cocaine found in this case was ‘indicative’ of dealing; (3)
crack users generally do not possess crack because they consume it immediately
after purchase; and (4) the amount of marijuana found in this case was ‘typical’
of a dealer.” Appellant’s Br. at 41; Trial Tr. Vol. 2, pp. 263–64. The State
responds that “[t]he testimony in fact did not comment upon [McMullen]
specifically, and so it was not objectionable.” Appellee’s Br. at 23.
[36] Both McMullen and the State rely on our court’s decision in Scisney v. State, 690
N.E.2d 342 (Ind. Ct. App. 1997), aff’d in relevant part, 701 N.E.2d 847 (Ind.
1998), to support their respective positions. In that case, a detective testified that
the specific facts of the case suggested that the defendant was a dealer rather
than a user. Id. at 345. On appeal, a panel of this court held:
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[A] police officer or law enforcement official who is offered and
qualified as an expert in the area of drugs, drug trade, drug
trafficking, etc., may offer testimony as to whether particular
facts tend to be more or less consistent with dealing in drugs.
However, the expert may not make conclusions as to whether the
defendant is a dealer or whether the defendant had the intent to
deal or deliver. Similarly, the expert may not be presented with a
hypothetical set of facts which reflect the facts of the case and be
asked to conclude whether a hypothetical individual is more
likely a dealer or user. In essence, the expert may comment on
the facts of the case, but must refrain from making any
conclusions as to the defendant's intent, guilt, or innocence.
Id. at 346. The Scisney court then held that because the detective “offered
conclusions as to [the defendant’s] intent to deliver . . . the testimony should
have been excluded.” Id. However, we upheld the defendant’s conviction
because we found that the admission of the detective’s inadmissible evidence
constituted harmless error based on substantial independent evidence of guilt.
Id. at 347.
[37] Sergeant Stefanatos’s challenged testimony here is as follows:
[State]: Ok. Uh, in your trained experience, um, what are
digital scales used for?
[Stefanatos]: Uh, weighing out illegal narcotics.
[State]: Uh, would you typically find that on somebody
that’s a crack addict or a user?
[Stefanatos]: No.
[State]: Who would you typically find that on?
[Stefanatos]: Someone who would be [] distributing them?
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[State]: Dealing them?
[Stefanatos]: Yes, dealing them.
[State]: Uh, that amount of cocaine, um, in your training
experience would that be indicative or a lot for
someone who’s a user or crack addict?
[Stefanatos]: Well, most crack addicts you wouldn’t hardly find
crack on ‘em unless you find ‘em leaving a crack
house, because they would smoke it immediately
after purchasing.
[State]: [I]s that a lot for a user to have?
[Stefanatos]: Yes it would be.
[State]: Is that indicative of someone dealing?
[Stefanatos]: Yes.
[State]: Uh, marijuana . . . same with the marijuana? Is that
a lot of marijuana for someone to, uh, have a party
with?
[Stefanatos]: Yeah[.]
[State]: So where would you usually typically find that
much marijuana?
[Stefanatos]: Uh, dealer.
Trial Tr. Vol. 2, pp. 263–64.8
8
McMullen asserts that “Stefanatos’s testimony, that the mere presence of drugs was indicative of dealing,
was also objectionable” under Indiana Evidence Rule 403(b). Appellant’s Br. at 42. Rule 403(b) prohibits
relevance evidence “if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting
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[38] During the detective’s testimony in Scisney, the State consistently referred to the
defendant when it recited specific facts of the case. 690 N.E.2d at 346. Here
however, Sergeant Stefanatos is doing exactly what the Scisney court held was
appropriate, “offer[ing] testimony as to whether particular facts tend to be more
or less consistent with dealing in drugs.” Id.[39] Distinguished from Scisney, the State did not mention McMullen specifically to
Sergeant Stefanatos throughout the challenged testimony, and it did not present
Sergeant Stefanatos with overtly particular facts pertinent to McMullen’s case.
Moreover, the State never referred to McMullen as a suspected dealer in its
questioning of Sergeant Stefanatos. See Scisney, 690 N.E.2d at 346 n2 (“The fact
that [the detective] testified to whether specific facts of the case were consistent
with drug dealing is not problematic in itself. Rather, we find it disturbing that
the conclusions followed immediately after he had concluded the person to be a
‘suspect dealer.’”). For these reasons, Lewis was not deficient for failing to
object to Sergeant Stefanatos’s admissible testimony.9 See Overstreet, 877 N.E.2d
at 155.
cumulative evidence.” However, as can be seen from his testimony above, Stefanatos did not testify that the
mere presence of drugs was indicative of dealing. Thus, Stefanatos’s testimony was not prejudicial, misleading,
or confusing.
9
And even if Lewis was deficient for failing to object to Sergeant Stefanatos’s challenged testimony, the
testimony does nothing more than explain to the jury that: (1) digital scales are typically used for weighing
narcotics; and (2) the amount of cocaine and marijuana recovered was indicative of someone dealing. This
does nothing to rebut McMullen’s defense at trial that the cocaine was not his. And McMullen was not
convicted of dealing marijuana or cocaine. Thus, McMullen has failed to persuade us that there is a
reasonable probability that the outcome of his trial would have been different but for Sergeant Stefanatos’s
testimony.
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E. Testimony from Detectives about Drug Activity at Greentree
[40] McMullen next contends that Lewis was ineffective for failing to object to
testimony from two detectives about past drug activity at Greentree.
Specifically, Grant County Sheriff’s Department Detective Michael Andry
testified that he “worked several narcotics investigations and criminal activity”
at Greentree. Trial Tr. Vol. 1, p. 194. And Detective Kauffman testified that he
had conducted investigations at Greentree in the past. Trial Tr. Vol. 2, p. 373.
McMullen asserts that the detective’s testimony “was unduly prejudicial and
inadmissible under Evidence Rules 403 and 404(b).” Appellant’s Br. at 43. We
disagree.
[41] Indiana Evidence Rule 403(b) prohibits relevance evidence “if its probative
value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, or
needlessly presenting cumulative evidence.” There is nothing prejudicial or
misleading about the detective’s statements regarding previous experience
conducting investigations at Greentree. And the statements do not contain any
reference to McMullen, either explicitly or implicitly. Thus, testimony from the
two detectives was not unduly prejudicial under Rule 403. Cf. Hernandez v. State,
785 N.E.2d 294, 300 (Ind. Ct. App. 2003) (statements from an officer indicating
that defendant’s business was engaged in prostitution when defendant was on
trial for prostitution were unduly prejudicial), trans. denied.
[42] The detective’s testimony also does not run afoul of Rule 404(b) because the
statements do not mention any character trait of or wrongful act by McMullen.
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See Dixson, 865 N.E.2d at 712. Accordingly, Lewis was not ineffective for
failing to object to the detective’s admissible testimony about previous
experiences at Greentree. See Overstreet, 877 N.E.2d at 155.
III. Failure to Present Mitigating Evidence at Sentencing
[43] McMullen next argues that Lewis was ineffective during the sentencing hearing
because he: (1) failed to conduct a reasonable investigation of McMullen’s
character; (2) failed to arrange for McMullen to receive an evaluation from a
mental health professional; and (3) failed to present sufficient evidence of
mitigating circumstances. Appellant’s Br. at 48. McMullen must show both that
Lewis performed deficiently at the sentencing hearing and that McMullen was
prejudiced by any deficient performance. State v. Miller, 771 N.E.2d 1284, 1288
(Ind. Ct. App. 2002), trans. denied. McMullen has not met that burden.
[44] We initially note that Lewis did argue several mitigating circumstances at
McMullen’s sentencing hearing including that: (1) despite McMullen’s lengthy
criminal history, most of his offenses were for minor violations; (2) McMullen’s
criminal records showed a pattern of him being overcharged; (3) McMullen
does not blame anyone else for his conduct; and (4) McMullen was abused and
neglected as a child. See Trial Tr. Vol. 2, pp. 493–96. Moreover, because of the
presentence investigation report, the sentencing court was already well aware of
McMullen’s background and any mental health concerns. Appellant’s Trial
App. Vol. 2, pp. 165–78.
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[45] McMullen challenged his sentence on direct appeal, and a panel of our court
noted:
McMullen has been incarcerated on several occasions; has
violated the terms of adult probation; has been cited several times
for misconduct in the Grant County jail; has been charged with
eighteen additional crimes that were later dismissed; and, as of
sentencing, had attempted murder, Class D felony criminal
recklessness, and Class C felony battery by means of a deadly
weapon charges pending. We find McMullen’s numerous
firearms-related convictions to be particularly disturbing.
McMullen’s multitudinous juvenile adjudications, criminal
convictions, and other contacts with the criminal justice system
have not caused him to reform himself. The nature of
McMullen’s offenses and his character justify his maximum
sentence.
McMullen, 2011 WL 2507057, at *6. And the post-conviction court echoed our
court’s conclusions in its order when it explained:
McMullen had been offered many different opportunities prior to
the incidents in question to rehabilitate his behavior, including
probation, placement at the Youth Opportunity Center,
placement at George Junior, cognitive behavioral therapy,
behavioral aftercare, POOL School, Family Services Homebased
Program, alcohol and drug counseling, and intensive outpatient
treatment, in addition to the intermediate punitive sanctions of
license suspensions, detention, house, arrest, and jail.
Throughout the course of his criminal history, he had
demonstrated no interest in changing his criminal behavior.
***
Thus, what was outcome-determinative at sentencing was not the
quality of the argument that his attorney made on the day of
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sentencing, but rather McMullen’s increasingly troubling
behavior and history which occurred in the thirteen years prior to
the day of sentencing.
Appellant’s PCR App. pp. 215, 217.
[46] We agree. The additional mitigating evidence that McMullen argues could have
been offered by his friends and family, see Appellant’s Br. at 51–52, would not
have favorably impacted his sentence. Moreover, that same evidence would
have done nothing to account for or explain the illegal possession of marijuana
and cocaine for which McMullen was convicted. Cf. McCarty v. State, 802
N.E.2d 959, 963–969 (Ind. Ct. App. 2004) (holding that trial counsel was
ineffective where defendant was convicted of child molestation and prior to
sentencing counsel failed to investigate defendant’s mental disability,
defendant’s molestation as a teenager, and that defendant would respond well
to treatment), trans. denied.
[47] For these reasons, we find that there is no reasonable probability that
McMullen would have received a different sentence if Lewis would have
argued more or different mitigating circumstances at sentencing. See Johnson v.
State, 832 N.E.2d 985, 1005 (Ind. Ct. App. 2005), trans. denied; McCarty, 802
N.E.2d at 967 (explaining that “[t]he dispositive question in determining
whether a defendant is prejudiced by counsel’s failure at sentencing to present
mitigating evidence is what effect the totality of the omitted mitigation evidence
would have had on the sentence.”). Accordingly, McMullen has failed to
demonstrate that he received ineffective assistance of counsel at sentencing.
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IV. Cumulative Error
[48] McMullen’s final claim of ineffective assistance of trial counsel is that he was
prejudiced by the cumulative effect of Lewis’s alleged errors.10 Our supreme
court has explained that errors by trial counsel which are not by themselves
sufficient to prove ineffective assistance of counsel may add up to ineffective
assistance when viewed cumulatively. French, 778 N.E.2d at 826. However, we
have determined that McMullen’s claims that he received ineffective assistance
of counsel are without merit, either because Lewis’s performance was not
deficient, or because McMullen was not prejudiced by any alleged deficient
performance. See Myers, 33 N.E.3d at 1114 (holding that “[a]lleged trial
irregularities which standing alone do not amount to error do not gain the
stature of reversible error when taken together.”) (citations and internal
quotation omitted).
[49] Moreover, we cannot say that any of Lewis’s alleged errors cumulatively did
substantial damage to McMullen’s defense, i.e., that someone else placed the
cocaine in the cabinet. The jury heard testimony from Garrett that she went to
the apartment to buy cocaine from McMullen on January 8, 2009. Officers then
watched as at least five individuals went in and out of the apartment for short
periods of time—conduct that is indicative of drug related activity. When
officers executed the search warrant on the apartment, they obtained nearly
10
The post-conviction court did not explicitly address this issue in its conclusions of law.
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eighteen grams of cocaine, one kilogram of marijuana, a nine-millimeter
handgun, and a digital scale. Although there was no identifiably available
fingerprints or DNA found on the baggie of cocaine, the State established that
the DNA found on the baggie of marijuana was consistent with McMullen’s
DNA. And McMullen’s fingerprints were found on the baggie of marijuana. All
of the items were located next to each other in a kitchen cabinet. McMullen was
also alone in the apartment with an infant when the search warrant was
executed. For these reasons, there is no reasonable probability that the
accumulation of Lewis’s alleged errors made a difference at McMullen’s trial.
See French, 778 N.E.2d at 826–27. Accordingly, we do not find any cumulative
error.
Ineffective Assistance of Appellate Counsel
[50] McMullen also claims that his appellate counsel, C. Robert Rittman
(“Rittman”), was constitutionally ineffective. When we review claims of
ineffective assistance of appellate counsel, we use the same standard applied to
claims of ineffective assistance of trial counsel, i.e., McMullen must show that
Rittman’s performance fell below an objective standard of reasonableness and
that there is a reasonable probability that, but for Rittman’s deficient
performance, the result of the proceeding would have been different. Manzano v.
State, 12 N.E.3d 321, 329 (Ind. Ct. App. 2014) (citing Harris v. State, 861 N.E.2d
1182, 1186 (Ind. 2007)), trans. denied. McMullen contends that Rittman was
ineffective in two ways, and we will address each in turn.
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I. Failure to Properly Challenge the Search and Seizure of Evidence
[51] McMullen first argues that Rittman failed to adequately challenge the search
and seizure of evidence on appeal. Our supreme court has explained that claims
of inadequate representation on an issue that was not found waived in the direct
appeal “are the most difficult for convicts to advance and reviewing tribunals to
support” for two reasons. Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997).
[52] First, “these claims essentially require the reviewing tribunal to re-view specific
issues it has already adjudicated to determine whether the new record citations,
cause references, or arguments would have had any marginal effect on their
previous decision.” Id. And second, our court is not limited to a review of the
“facts and cases cited and arguments made by the appellant’s counsel. We
commonly review relevant portions of the record, perform separate legal
research, and often decide cases based on legal arguments and reasoning not
advanced by either party.” Id.[53] Here, McMullen specifically argues that Rittman failed to raise “several
important points and arguments, favoring suppression[.]” Appellant’s Br. at 61.
First, McMullen contends that Rittman failed to include several facts to
demonstrate that Gause was a government actor when he entered Glasser’s
apartment. However, our court had access to each piece of evidence that
McMullen claims Rittman was ineffective for failing to bring to this court’s
attention. See Appellant’s Trial App. Vol. 1, pp. 22, 75, 106, 120–21, 127. And
in McMullen’s direct appeal, a panel of this court reviewed the evidence
addressing Gause’s status as a government actor and found that “the trial court
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reasonably concluded that Gause was not acting as an agent or instrument for
the State when he entered the apartment to spray for pests.” McMullen, 2011
WL 2507057, at *4.
[54] McMullen also alleges that if Rittman had cited to this court’s opinion in Shultz
v. State, 742 N.E.2d 961 (Ind. Ct. App. 2011), trans. denied, that “there is a
reasonable probability the court would have found that [the officers] looking
into the window [of the apartment] constituted an illegal search.” Appellant’s
Br. at 63.11 But in Shultz, officers wiped dirt off of a vehicles wheel well to reveal
a partial VIN, and they toured the defendant’s property after no one answered
the door. Shultz, 742 N.E.2d at 965–66. Here, there was an active warrant for
McMullen’s arrest, two police officers identified McMullen before entering the
apartment, and an officer saw McMullen in the apartment through partially
opened blinds. Moreover, Detective Allen confirmed McMullen was inside the
apartment before police knocked. Simply put, Shultz is readily distinguishable
from the case before us, and even if Rittman had cited to it in his brief, it would
not have changed our court’s decision in McMullen’s direct appeal. See Bieghler,
690 N.E.2d at 196 (holding that relief on an ineffectiveness challenge resting on
11
We also note that it is likely that the panel that handled McMullen’s direct appeal was well aware of Shultz
v. State even without Rittman citing to it in his brief. On appeal, “[w]e commonly . . . perform separate legal
research, and often decide cases based on legal arguments and reasoning not advanced by either party.”
Bieghler, 690 N.E.2d at 195. And McMullen’s trial counsel cited to Shultz in the motion to suppress, see
Appellant’s Trial App. Vol. 1, pp. 33–34, which was also before our court in McMullen’s direct appeal.
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appellate counsel’s presentation of a claim is “only appropriate when the
appellate court is confident it would have ruled differently.”).
[55] For all of these reasons, we find that there was nothing unreasonable or
prejudicial about Rittman’s presentation of the search and seizure issue on
appeal.
II. Failure to Challenge Exclusion of Evidence of Bias
[56] McMullen next argues that Rittman was ineffective because he failed to
challenge on appeal the exclusion of evidence that another witness was charged
with drug dealing. Ineffective assistance is very rarely found in cases where a
defendant asserts that appellate counsel failed to raise an issue on direct appeal
because the decision of what issues to raise is one of the most important
strategic decisions to be made by appellate counsel. Manzano, 12 N.E.3d at 330.
Indeed, our supreme court has warned that we “should be particularly sensitive
to the need for separating the wheat from the chaff in appellate advocacy,” and
we “should not find deficient performance when counsel’s choice of some
issues over others was reasonable in light of the facts of the case and the
precedent available to counsel when that choice was made.” Reed v. State, 856
N.E.2d 1189, 1195 (Ind. 2006).
[57] McMullen specifically contends that Rittman was ineffective on appeal for
failing to challenge the trial court’s exclusion of Garrett’s pending drug charge.
Garrett had a charge for dealing at the time she testified in McMullen’s trial,
which was reduced to possession with an option for dismissal if she followed
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through with drug counseling. McMullen alleges that “evidence of Garrett’s
dealing charge, the break she received from the State, and the possibility of
having the case dismissed completely, was relevant to bias.” Appellant’s Br. at
64. And “[t]here was a reasonable degree of probability that Garrett was
motivated to give her testimony, which was favorable to the prosecution, due to
the pending dealing charge and her desire to have that case dismissed.” Id. We
disagree.
[58] Garrett’s pending drug charge and the deal she reached with the State were
based on her participation in counseling and had nothing to do with her
testimony in McMullen’s case. When Garrett, a known drug user at the time,
first gave her statement to police that she went to the apartment on January 8,
2009, to see McMullen, she had not been arrested and she was not working for
the State as an informant. And at trial, Garrett admitted that she attempted to
purchase cocaine from McMullen on January 8 but was unable to. Garrett’s
self-admission of attempted criminal behavior further diminishes McMullen’s
argument that Garrett was biased against him when she testified at trial. For
these reasons, Rittman’s decision not to challenge the trial court’s exclusion of
Garrett’s irrelevant pending drug charge was not deficient. See Graham v. State,
941 N.E.2d 1091, 1099 (Ind. Ct. App. 2011) (noting that, to prove ineffective
assistance of counsel, issues not raised must have been “obvious from the face
of the record”). Accordingly, the post-conviction court properly concluded that
McMullen was not denied the effective assistance of appellate counsel.
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Conclusion
[59] Based on the facts and circumstances before us, the post-conviction court did
not clearly err when it rejected McMullen’s claims of ineffective assistance of
trial counsel and appellate counsel. Accordingly, we affirm the judgment of the
post-conviction court denying McMullen’s petition for post-conviction relief.
Riley, J., and May, J., concur.
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