Craig E. Hardiman v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Jul 13 2020, 8:53 am
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael C. Keating Curtis T. Hill, Jr.
Law Offices of Steven K. Deig, LLC Attorney General of Indiana
Evansville, Indiana
Tiffany A. McCoy
Steven L. Whitehead Deputy Attorney General
Princeton, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Craig E. Hardiman, July 13, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-2950
v. Appeal from the Gibson Circuit
Court
State of Indiana, The Honorable Jeffrey F. Meade,
Appellee-Respondent. Judge
Trial Court Cause No.
26C01-1904-PC-395
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2950 | July 13, 2020 Page 1 of 13
Case Summary
[1] In 2003, Craig E. Hardiman pled guilty to Class B felony manufacturing a
controlled substance. In 2019, Hardiman filed a petition for post-conviction
relief (“PCR”), claiming that he had received ineffective assistance of trial
counsel. Following an evidentiary hearing, the post-conviction court denied
Hardiman’s PCR petition. We affirm.
Facts and Procedural History
[2] On January 31, 2003, Gibson County Sheriff’s Department officer John Alley
and several other officers went to Hardiman’s residence to investigate a report
that Hardiman was planning to sell methamphetamine and a stolen handgun.
Hardiman’s residence had a detached garage and an outbuilding approximately
thirty to forty feet northeast of the house. Officers attempted to locate
Hardiman in both the house and garage. While attempting to locate Hardiman,
the officers detected a strong smell of ether. They also observed a large propane
tank with greenish corrosion and numerous items used during the process of
manufacturing methamphetamine in a burn pile, in front of the outbuilding,
and scattered in Hardiman’s yard between the house and the outbuilding.
[3] The next day, officers observed two males, one identified as Hardiman, at the
same residence. The officers observed Hardiman carrying what appeared to be
a glass blender containing a substance similar to “pill dough” and coffee filters
from the outbuilding to the house. Appellant’s App. Vol. II p. 27. Both officers
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again detected a strong odor of ether. The officers watched Hardiman and the
other individual make three separate trips from the outbuilding to the house.
[4] On February 2, 2003, Officer Alley once again detected a strong smell of ether
coming from Hardiman’s residence. Approximately fifteen minutes later,
another officer drove by Hardiman’s residence and also smelled a strong smell
of ether. Later that day, Officer Alley requested a search warrant for
Hardiman’s residence. In support of his request, he averred that based on his
training, experience, and personal observations, he believed that there was
probable cause to establish that Hardiman was engaged in the manufacture
and/or possession of methamphetamine. The trial judge found that there was
probable cause and issued a search warrant. Various drug-related items were
recovered during the subsequent search of Hardiman’s residence.
[5] On February 3, 2003, the State charged Hardiman with Class B felony
manufacturing a controlled substance, Class D felony possession of a controlled
substance, and Class D felony possession of chemical reagents or precursors
with intent to manufacture. On May 20, 2003, Hardiman pled guilty to Class B
felony manufacturing a controlled substance. In exchange for his guilty plea,
the State agreed to dismiss the remaining charges. The trial court sentenced
Hardiman to a six-year term, which was to be served consecutive to
Hardiman’s thirty-four-year sentence in Cause Number 26C01-0210-FA-1, and
concurrent to his sentence in Cause Number 26C01-0208-FD-67.
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[6] On April 22, 2019, Hardiman filed a PCR petition, claiming that he had
received ineffective assistance of counsel. The post-conviction court conducted
an evidentiary hearing on Hardiman’s petition on August 29, 2019. During the
evidentiary hearing, trial counsel acknowledged that he had not moved to
suppress the evidence recovered during the execution of the search warrant.
While trial counsel testified that he could not remember why he had not filed a
motion to suppress, he indicated that it is his standard practice to review a
criminal case file for search and seizure issues. On November 14, 2019, the
post-conviction court denied Hardiman’s PCR petition.
Discussion and Decision 1
[7] Post-conviction procedures do not afford the petitioner with a super-appeal.
Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Instead, they create a
narrow remedy for subsequent collateral challenges to convictions, challenges
which must be based on grounds enumerated in the post-conviction rules. Id.
A petitioner who has been denied post-conviction relief appeals from a negative
judgment and as a result, faces a rigorous standard of review on appeal. Dewitt
v. State, 755 N.E.2d 167, 169 (Ind. 2001); Colliar v. State, 715 N.E.2d 940, 942
(Ind. Ct. App. 1999), trans. denied.
1
We note that in denying Hardiman’s PCR petition, the post-conviction court found both that the PCR
proceedings were barred by laches and that Hardiman failed to establish that he suffered ineffective assistance
of trial counsel. Given our preference for deciding cases on the merits, we focus our review on the merits of
Hardiman’s ineffective-assistance claim.
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[8] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,
745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his
claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);
Stevens, 770 N.E.2d at 745. When appealing from the denial of a PCR petition,
a petitioner must convince this court that the evidence, taken 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. “It is only where the evidence is
without conflict and leads to but one conclusion, and the post-conviction court
has reached the opposite conclusion, that its decision will be disturbed as
contrary to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004),
trans. denied. The post-conviction court is the sole judge of the weight of the
evidence and the credibility of the witnesses. Fisher v. State, 810 N.E.2d 674,
679 (Ind. 2004).
Ineffective Assistance of Counsel
[9] The right to effective counsel is rooted in the Sixth Amendment to the United
States Constitution. Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “‘The
Sixth Amendment recognizes the right to the assistance of counsel because it
envisions counsel’s playing a role that is critical to the ability of the adversarial
system to produce just results.’” Id. (quoting Strickland v. Washington, 466 U.S.
668, 685 (1984)). “‘The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.’” Id. (quoting Strickland, 466 U.S. at 686). “The Strickland standard is
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not limited to the trial or appellate phases in criminal proceedings, but also
applies when defendants allege ineffective assistance during the guilty plea
phase.” Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019).
[10] A successful claim for ineffective assistance of counsel must satisfy two
components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). Under the first
prong, the petitioner must establish that counsel’s performance was deficient by
demonstrating that counsel’s representation “fell below an objective standard of
reasonableness, committing errors so serious that the defendant did not have
the ‘counsel’ guaranteed by the Sixth Amendment.” Id. We recognize that
even the finest, most experienced criminal defense attorneys may not agree on
the ideal strategy or most effective way to represent a client, and therefore,
under this prong, we will assume that counsel performed adequately and defer
to counsel’s strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585
(Ind. 2002). Isolated mistakes, poor strategy, inexperience, and instances of
bad judgment do not necessarily render representation ineffective. Id.
[11] Under the second prong, the petitioner must show that the deficient
performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may
show prejudice by demonstrating that there is “a reasonable probability (i.e. a
probability sufficient to undermine confidence in the outcome) that, but for
counsel’s errors, the result of the proceeding would have been different.” Id. A
petitioner’s failure to satisfy either prong will cause the ineffective assistance of
counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently,
“[a]lthough the two parts of the Strickland test are separate inquires, a claim
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may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031
(Ind. 2006) (citing Williams, 706 N.E.2d at 154).
[12] Hardiman contends that his trial counsel provided ineffective assistance by
failing to file a motion to suppress the evidence recovered during the execution
of the search warrant. “A petitioner alleging ineffective assistance of counsel in
overlooking a defense leading to a guilty plea must show a reasonable
probability that, had the defense been raised, the petitioner would not have
pleaded guilty and would have succeeded at trial.” Helton v. State, 907 N.E.2d
1020, 1023 (Ind. 2009). Further, “‘[t]o prevail on an ineffective assistance of
counsel claim based upon counsel’s failure to file motions on a defendant’s
behalf, the defendant must demonstrate that such motions would have been
successful.’” Moore v. State, 872 N.E.2d 617, 621 (Ind. Ct. App. 2007) (quoting
Wales v. State, 768 N.E.2d 513, 523 (Ind. Ct. App. 2002), trans. denied).
[13] We have previously concluded that while “[i]t is certainly the case that in some
circumstances a claim of ineffective assistance of counsel can be established by
showing a failure to suppress evidence,” the petitioner bears the burden of proof
at his post-conviction evidentiary hearing. Helton, 907 N.E.2d at 1024. As
such, it is incumbent on the petitioner—not the State—to show that “there is a
reasonable probability of insufficient evidence if a suppression motion had been
granted.” Id. at 1025. In Helton, the petitioner argued that without the seized
contraband, the odds of a better result at trial “would have been much better
than negligible” but presented “no evidence to establish [his] claim.” Id. Upon
review, we concluded that
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Perhaps if the evidence seized from Helton’s home had been
excluded, the chances of a better outcome would have been
greater. But in the absence of any showing that the State’s other
evidence would have been insufficient, we are unable to evaluate
the likelihood of acquittal or dismissal, and Helton has not
shown a reasonable probability, or any probability at all, that he
would have prevailed at trial.
Id.
[14] In arguing that his trial counsel provided ineffective assistance, Hardiman
asserts
Had trial counsel filed a motion to suppress, it would have been
granted. If one removes the observations made during the
officer’s illegal entry from the search warrant affidavit, the
remaining facts set out therein are woefully inadequate to
establish probable cause to search the Petitioner’s property.
Under the circumstances, with the evidence ultimately
suppressed, the Petitioner obviously (and reasonably) [would]
have opted for proceeding with his plea of not guilty and would
not have chosen to plead guilty. Trial counsel was, therefore,
ineffective in not filing a motion to suppress and in allowing the
Petitioner to plead guilty.
Appellant’s Br. pp. 19–20. We cannot agree with Hardiman that the facts set
forth in Officer Alley’s affidavit in support of his request for a search warrant
were “woefully inadequate to establish probable cause.” Appellant’s Br. p. 19.
[15] “To be valid, a warrant and its underlying affidavit must comply with the
Fourth Amendment prohibition on unreasonable searches and seizures, as well
as Indiana constitutional and statutory law.” Gray v. State, 758 N.E.2d 519, 521
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(Ind. 2001). “In order to comply with these restrictions, the [judge’s] task is
simply to make a practical, commonsense decision whether, given all the
circumstances set forth before him there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Id. (internal quote and
ellipses omitted). “Probable cause to search premises is established when a
sufficient basis of fact exists to permit a reasonably prudent person to believe
that a search of those premises will uncover evidence of a crime.” Redden v.
State, 850 N.E.2d 451, 461 (Ind. Ct. App. 2006) (internal quotation omitted).
“The decision to issue the warrant should be based on the facts stated in the
affidavit and the rational and reasonable inferences drawn therefrom.” Id.
“When seeking a search warrant, the police must follow the warrant statute,
I.C. § 35–33–5–2,[2] which specifies the minimum information necessary to
establish probable cause.” Id. (internal quotation omitted). “As the reviewing
court, our duty under the Fourth Amendment is to determine whether the
[judge] issuing the warrant had a substantial basis for concluding that probable
cause existed.” Gray, 758 N.E.2d at 521 (internal quotation omitted). “While
2
Indiana Code section 35-33-5-2(a) provides that
no warrant for search or arrest shall be issued until there is filed with the judge an affidavit:
(1) particularly describing:
(A) the house or place to be searched and the things to
be searched for; or
(B) particularly describing the person to be arrested;
(2) alleging substantially the offense in relation thereto and that the
affiant believes and has good cause to believe that:
(A) the things sought are concealed there; or
(B) the person to be arrested committed the offense;
and
(3) setting forth the facts known to the affiant through personal
knowledge or based on hearsay, constituting the probable cause.
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significant deference is due to the [judge’s] determination, our search for
substantial basis must focus on whether reasonable inferences drawn from the
totality of the evidence support the determination.” Id. (internal quotation
omitted).
[16] Officer Alley requested a warrant to search Hardiman’s property on February 2,
2003. In support of his request, Officer Alley averred:
1. That affiant is an officer with the Gibson County Sheriff
Department.
2. On January 31, 2003, this affiant and several officers went to
the residence of Craig Hardiman, which is the third house east of
Greer Fruit Market on the north side of SR 64 west with an
unattached outbuilding approximately 30 to 40 feet northeast of
the house. The purpose of the contact was to investigate a report
that [Hardiman] was to sell methamphetamine and a stolen
handgun at 10:00 pm at this residence. Officers went to the
house and to the garage to locate [Hardiman] and observed a
strong smell of ether, numerous punched starting fluid cans and
stripped batteries in a burn pile, additional stripped batteries in
front of the outbuilding, used coffee filters scattered between the
house and the outbuilding in the yard area, and a large propane
tank with greenish corrosion.
3. On February 1, 2003, two other officers with the Gibson
County Sheriff Department observed two males, one identified as
[Hardiman], at this residence. [Hardiman] was observed
carrying what appeared to be a glass blender containing a
substance similar to “pill dough,” and coffee filters from the
outbuilding to the residence. The officers while observing the
residence also observed a strong odor of ether. These officers
observed the individuals make three separate trips from the
outbuilding to the house.
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4. On February 2, 2003, this affiant observed a strong smell of
ether coming from the residence. Another officer also drove by
the residence within approximately fifteen minutes of this
affiant’s observation and also smelled a strong smell of ether.
5. Based on this affiant’s training, experience and personal
observations this affiant believes that there is evidence of
manufacture/possession of methamphetamine, precursors, stolen
weapons and paraphernalia within the above buildings and/or
vehicles.
Appellant’s App. Vol. II p. 27.
[17] In challenging the sufficiency of the affidavit to establish probable cause,
Hardiman asserts that the burn pile and outbuilding were located in the
curtilage surrounding his property and were not visible from the area where a
visitor to his property would be expected to go. “The area immediately
surrounding one’s home is known as ‘curtilage,’ a term derived from Medieval
Latin for court or yard.” Divello v. State, 782 N.E.2d 433, 437 (Ind. Ct. App.
2003).
When police enter onto private property in order to conduct an
investigation or for another legitimate purpose and restrict their
entry to places that other visitors would be expected to go, such
as walkways, driveways, or porches, any observation made from
these areas is permissible under the United States Constitution
and the Fourth Amendment thereto. Accordingly, an individual
does not have a reasonable expectation of privacy with regard to
things or activities within a residence that may be observed by
persons using their natural senses from places impliedly open to a
visitor’s entry. In general, this means that if police utilize normal
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means of access to and egress from the house for some legitimate
purpose, such as to make inquiries of the occupant, it is not a
Fourth Amendment search for the police to see or hear or smell
from that vantage point what is happening inside the dwelling.
The implied invitation, however, extends only to those with
legitimate business, and applies only to recognized access routes
reasonable under the circumstances.
Id. (internal citations, quotations, and ellipses omitted).
[18] In this case, even if we were to assume that Hardiman’s description of the
location of the burn pile and outbuilding as being located in the curtilage
beyond the view from where a visitor is expected to go is accurate, we conclude
that the affidavit is nonetheless sufficient to establish probable cause. The
remaining portions of Officer Alley’s affidavit indicate that on three consecutive
days, multiple officers smelled the strong odor of ether, and Hardiman does not
claim that any of them were in the curtilage at the time. We have previously
noted that the strong smell of ether is a common sign of methamphetamine
production. See generally Holder v. State, 847 N.E.2d 930, 933 n.1 (Ind. 2006)
(“Ether is a chemical commonly known among law enforcement to be
employed in the manufacture of methamphetamine.”). On the second of the
three days, Hardiman was observed entering and exiting the house carrying
what appeared to be materials used in or produced during the manufacture of
methamphetamine. Officers also observed a large propane tank with “greenish
corrosion” and Hardiman makes no argument that the propane tank was
located beyond an individual’s view from an area where a visitor is expected to
go. In addition, officers had received a report that Hardiman was going to sell
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methamphetamine and a stolen handgun from the property on at a particular
time on a particular date. We conclude that these factors are sufficient to
establish probable cause to believe that Hardiman was engaged in the
manufacture of methamphetamine. Thus, similar to Helton, we conclude that
Hardiman has failed to carry his burden of establishing a reasonable probability
that he would have succeeded at trial if a motion to suppress had been made
and sustained.
[19] The judgment of the post-conviction court is affirmed.
Baker, J., and Pyle, J., concur.
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