Christopher Bryant v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                  FILED
    regarded as precedent or cited before any                         Jan 10 2017, 8:08 am
    court except for the purpose of establishing                           CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                               Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
    Christopher A. Bryant                                    Curtis T. Hill
    Michigan City, Indiana                                   Attorney General of Indiana
    Justin F. Roebel
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Christopher Bryant,                                      January 10, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    45A04-1602-PC-434
    v.                                               Appeal from the Lake Superior
    Court
    State of Indiana,                                        The Honorable Samuel L. Cappas,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause No.
    45G04-1211-PC-17
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017     Page 1 of 10
    Case Summary and Issues
    [1]   Following a jury trial in 2010, Christopher Bryant was found guilty of resisting
    law enforcement, possession of marijuana, and two counts of dealing in a
    narcotic drug. Bryant also admitted to being an habitual substance offender.
    The trial court sentenced Bryant to an aggregate sentence of forty-five years to
    be executed in the Indiana Department of Correction. On direct appeal, we
    affirmed his convictions and sentence. Bryant v. State, 
    959 N.E.2d 315
    , 317
    (Ind. Ct. App. 2011). Thereafter, Bryant filed a petition for post-conviction
    relief wherein he alleged prosecutorial misconduct and ineffective assistance of
    trial and appellate counsel, which the post-conviction court denied. Bryant, pro
    se, now appeals the denial of post-conviction relief, raising two issues for our
    review: (1) whether the post-conviction court erred in concluding Bryant’s trial
    counsel was not ineffective, and (2) whether the post-conviction court erred in
    concluding Bryant’s appellate counsel was not ineffective. Concluding trial and
    appellate counsel were not ineffective, we affirm.
    Facts and Procedural History
    [2]   We summarized the facts and procedural history of this case in Bryant’s direct
    appeal:
    On September 1, 2010, Hammond Police outfitted a confidential
    informant (“CI”) with an audio-visual recorder, provided him
    with $150 of “buy” money, and directed him to arrange a drug
    deal with a person known only to the police and the CI as
    “Prophet,” but who later turned out to be Bryant. The CI
    Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 2 of 10
    telephoned Bryant, who arrived at the CI’s residence
    approximately thirty minutes later. The CI approached Bryant’s
    vehicle and purchased $130 worth of heroin, leaving him with
    $20 of buy money left. The CI returned to his residence and gave
    0.54 grams of heroin and the remaining buy money to police.
    Hammond Police Detective Marc Ferry followed Bryant’s
    vehicle when it pulled away. Eventually, Bryant failed to signal a
    turn, and Detective Ferry activated his lights and siren to initiate
    a stop. Detective Ferry approached the vehicle, and, after
    knocking on the driver’s side window with his flashlight, asked
    twice for Bryant’s identification and vehicle registration. When
    Bryant asked why he had been stopped, Detective Ferry said,
    “Well, for starters because of the loud music.” At this point,
    Bryant drove off slowly.
    Detective Ferry returned to his vehicle and pursued Bryant, who
    leaned “hard to the right” momentarily before stopping in an
    empty lot after approximately two blocks. Detective Ferry had
    witnessed others lean and pull away as Bryant had done and
    believed that “people when they pull away like that, they are
    buying time, they're trying to hide something.” Detective Ferry
    testified that “[a]t that time, [Bryant was being arrested] for
    resisting law enforcement.” When Bryant was taken into
    custody, Detective Ferry received permission from his supervisor
    to conduct a strip search. When two officers forcibly bent Bryant
    over, Detective Ferry recovered a “clear plastic bag which was
    slightly torn opened [sic], containing a green, leafy substance”
    that was determined to be 2.14 grams of marijuana from between
    Bryant’s buttocks. Bryant then told Detective Ferry that he “got
    it from the patrol car that transported him into the station.”
    Bryant had not been read his Miranda rights at the time of the
    search. Detective Ferry also recovered the $130 of buy money
    from Bryant’s pants. Police identified “Prophet” as Bryant, and
    he was eventually released.
    Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 3 of 10
    On September 7, 2010, police again fitted the CI with an audio-
    visual recorder, provided him with $200 in buy money, and again
    instructed him to arrange a drug deal with Bryant. The CI
    telephoned Bryant and told him that he wanted to purchase one
    gram of heroin. When Bryant arrived at the CI’s residence, the
    CI approached the vehicle and purchased $230 worth of heroin
    for $200 from Bryant. The CI returned to his residence and gave
    police officers the 0.93 grams of heroin he had just purchased.
    Police followed Bryant’s vehicle as he drove away and arrested
    him inside a store in Hammond. The next day, the CI selected
    Bryant from a photo array and identified him as the person from
    whom he had purchased heroin on September 1 and 7, 2010.
    Eventually, the State charged Bryant with two counts of Class A
    felony dealing in a narcotic drug, Class A misdemeanor resisting
    law enforcement, Class A misdemeanor marijuana possession,
    and with being a habitual substance offender.
    Following trial, a jury found Bryant guilty of two counts of Class
    A felony dealing in a narcotic drug, Class A misdemeanor
    resisting law enforcement, and Class A misdemeanor marijuana
    possession. Bryant admitted that he was a habitual substance
    offender. The trial court sentenced Bryant to forty-two years for
    each of his two dealing in a narcotic drug convictions, one year
    for resisting law enforcement, and one year for marijuana
    possession, and with being a habitual substance offender, all
    sentences to be served concurrently. The trial court
    enhanced Bryant’s sentence three years by virtue of his habitual
    substance offender status.
    
    Id. at 317-19
     (alteration in original) (citations omitted). Bryant appealed his
    convictions and sentence, arguing inter alia that trial counsel rendered
    ineffective assistance in failing to challenge the constitutionality of the strip
    search. Specifically, Bryant contended the search was unreasonable under the
    Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 4 of 10
    Indiana Constitution. We disagreed and affirmed his convictions and sentence.
    
    Id. at 317
    .
    [3]   On November 15, 2012, Bryant filed a petition for post-conviction relief and the
    post-conviction court appointed a State Public Defender to represent him. The
    State Public Defender later withdrew as counsel after consulting with Bryant
    and conducting an appropriate investigation into Bryant’s claims. Nearly a
    year later, Bryant sought to withdraw his petition without prejudice, which the
    post-conviction court allowed.
    [4]   On May 7, 2014, Bryant filed a second petition for post-conviction relief, which
    the post-conviction court deemed an amendment and reactivation of Bryant’s
    first petition. Bryant raised seventeen claims of ineffective assistance of trial
    counsel and seven claims of ineffective assistance of appellate counsel.
    Following a six-part evidentiary hearing conducted over a span of six months,
    the post-conviction court issued its findings of fact and conclusions thereon
    denying Bryant post-conviction relief. Bryant, pro se, now appeals.
    Discussion and Decision
    I. Standard of Review
    [5]   Post-conviction proceedings are not an opportunity for a super-appeal.
    Timberlake v. State, 
    753 N.E.2d 591
    , 597 (Ind. 2001), cert. denied, 
    537 U.S. 839
    (2002). Rather, they create a narrow remedy for subsequent collateral
    challenges to convictions that must be based on grounds enumerated in the
    Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 5 of 10
    post-conviction rules. 
    Id.
     If not raised on direct appeal, a claim of ineffective
    assistance of counsel is properly presented in a post-conviction
    proceeding. 
    Id.
     A claim of ineffective assistance of appellate counsel is also an
    appropriate issue for post-conviction review. 
    Id.
     The petitioner must establish
    his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
    [6]   A petitioner who has been denied post-conviction relief faces a “rigorous
    standard of review” on appeal. Dewitt v. State, 
    755 N.E.2d 167
    , 169 (Ind. 2001).
    In reviewing the judgment of a post-conviction court, we may not reweigh the
    evidence nor reassess witness credibility; rather we consider only the evidence
    and reasonable inferences supporting the judgment. Hall v. State, 
    849 N.E.2d 466
    , 468-69 (Ind. 2006). We will affirm the post-conviction court’s denial of
    post-conviction relief unless the evidence leads “unerringly and unmistakably to
    a decision opposite that reached by the post-conviction court.” McCary v.
    State, 
    761 N.E.2d 389
    , 391 (Ind. 2002). Finally, we do not defer to the post-
    conviction court’s legal conclusions, but do accept its factual findings unless
    they are clearly erroneous. Stevens v. State, 
    770 N.E.2d 739
    , 746 (Ind.
    2002), cert. denied, 
    540 U.S. 830
     (2003).
    II. Ineffective Assistance of Trial Counsel
    [7]   Bryant contends the post-conviction court erred in concluding his trial counsel
    was not ineffective. The State counters Bryant raised an ineffective assistance
    of trial counsel claim on direct appeal and is therefore barred from re-litigating
    the claim. We agree with the State.
    Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 6 of 10
    [8]    “Although a defendant may present a claim of ineffective assistance of counsel
    on direct appeal, if he so chooses, the issue will be foreclosed from collateral
    review.” Rogers v. State, 
    897 N.E.2d 955
    , 965 (Ind. Ct. App. 2008) (citing Woods
    v. State, 
    701 N.E.2d 1208
    , 1220 (Ind. 1998)), trans. denied. On direct appeal,
    Bryant raised a claim of ineffective assistance of trial counsel. We therefore
    conclude Bryant is barred from re-litigating his claim of ineffective assistance of
    trial counsel in this post-conviction proceeding.
    III. Ineffective Assistance of Appellate Counsel
    [9]    Bryant also argues the post-conviction court erred in concluding his appellate
    counsel was not ineffective. Specifically, Bryant contends appellate counsel
    rendered ineffective assistance by failing to challenge the reasonableness of the
    strip search under the Fourth Amendment to the United States Constitution. 1
    We disagree.
    [10]   The standard for ineffective assistance of appellate counsel is the same standard
    as for trial counsel. Garrett v. State, 
    992 N.E.2d 710
    , 719 (Ind. 2013).
    1
    In his petition for post-conviction relief, Bryant alleges several instances of ineffective assistance by his
    appellate counsel. In his ninety-two-page handwritten brief on appeal, he lists most, if not all, of those
    instances in the Table of Contents, the Statement of the Case, and the Summary of Argument. However, the
    only instance Bryant addresses in the Argument section of his brief is his contention appellate counsel failed
    to challenge the reasonableness of the strip search under the Fourth Amendment. Thus, to the extent Bryant
    intended to raise additional instances of alleged ineffective assistance by appellate counsel, we will not
    develop an argument on Bryant’s behalf, see Thomas v. State, 
    965 N.E.2d 70
    , 77 n.2 (Ind. Ct. App. 2012),
    trans. denied, and conclude those arguments are waived for failure to present a cogent argument, see Ind.
    Appellate Rule 46(A)(8).
    Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017             Page 7 of 10
    To establish a claim of ineffective assistance of counsel, a
    defendant must demonstrate to the post-conviction court that
    counsel performed deficiently and the deficiency resulted in
    prejudice. This standard asks whether, considering all the
    circumstances, counsel’s actions were reasonable under
    prevailing professional norms. Judicial scrutiny of counsel’s
    performance must be highly deferential. And even if appellate
    counsel’s performance is deficient, to prevail, petitioner must
    demonstrate a reasonable probability that the outcome of the
    direct appeal would have been different. When evaluating a
    claimed deficiency in appellate representation due to an omission
    of an issue, a post-conviction court is properly deferential to
    appellate counsel’s choice of issues for appeal unless such a
    decision was unquestionably unreasonable. Such deference is
    appropriate because the selection of issues for direct appeal is one
    of the most important strategic decisions of appellate
    counsel. Appellate counsel’s performance, as to the selection and
    presentation of issues, will thus be presumed adequate unless
    found unquestionably unreasonable considering the information
    available in the trial record or otherwise known to the appellate
    counsel. In crafting an appeal, counsel must choose those issues
    which appear from the face of the record to be most availing.
    Experienced advocates since time beyond memory have
    emphasized the importance of winnowing out weaker arguments
    on appeal and focusing on one central issue if possible, or at most
    on a few key issues. Thus, to prevail in such claim in post-
    conviction proceedings, it is not enough to show that appellate
    counsel did not raise some potential issue; instead, the defendant
    must show that the issue was one which a reasonable attorney
    would have thought availing.
    Hampton v. State, 
    961 N.E.2d 480
    , 491-92 (Ind. 2012) (citations, alterations, and
    internal quotation marks omitted).
    Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 8 of 10
    [11]   At the outset, we acknowledge Bryant’s appellate counsel only challenged the
    reasonableness of the strip search under the Indiana Constitution, not under the
    Fourth Amendment to the United States Constitution. However, in 2001, our
    supreme court in Edwards v. State held
    that routine, warrantless strip searches of misdemeanor arrestees,
    even when incident to lawful arrests, are impermissible under the
    Indiana Constitution and the United States Constitution, and that
    before jail officials may conduct warrantless strip searches of
    misdemeanor arrestees detained awaiting the posting of bond,
    those officials must have a reasonable suspicion that the arrestee
    is concealing weapons or contraband.
    
    759 N.E.2d 626
    , 627-28 (Ind. 2001) (emphasis added). Thus, at the time of
    Bryant’s direct appeal in 2011, our supreme court made clear both the state and
    federal analysis in determining the reasonableness of a warrantless strip search
    of a misdemeanor arrestee is the same and each requires law enforcement to
    have reasonable suspicion the arrestee is concealing weapons or contraband.
    See 
    id.
     In light of the fact both analyses were the same and Bryant’s appellate
    counsel challenged the search under the Indiana Constitution, we cannot say
    appellate counsel’s decision to not challenge the search under the Fourth
    Amendment was “unquestionably unreasonable” nor can we see how Bryant
    suffered any prejudice. See Hampton, 961 N.E.2d at 491.
    [12]   In any event, we further emphasize Detective Ferry had knowledge of, and was
    investigating, Bryant’s participation in dealing narcotics. When Detective Ferry
    initiated a traffic stop of Bryant shortly following a controlled buy, he observed
    Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 9 of 10
    Bryant drive away slowly and veer to the right, an action Detective Ferry
    believed based on his experience indicated Bryant was attempting to conceal
    something. As we held in Bryant’s direct appeal, such facts give rise to
    reasonable suspicion to justify a warrantless strip search under the Indiana
    Constitution. See Bryant, 
    959 N.E.2d at 320
    . Therefore, Bryant’s claim would
    have also failed under the Fourth Amendment. We conclude appellate counsel
    did not render ineffective assistance by failing to challenge the search under the
    Fourth Amendment. See Singleton v. State, 
    889 N.E.2d 35
    , 41 (Ind. Ct. App.
    2008) (noting appellate counsel does not render ineffective assistance for failing
    to raise issues that are unlikely to succeed), trans. denied.
    Conclusion
    [13]   The post-conviction court did not err in concluding Bryant is not entitled to
    post-conviction relief on his claims he received ineffective assistance of trial and
    appellate counsel. Accordingly, we affirm.
    [14]   Affirmed.
    Kirsch, J., and Barnes, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 45A04-1602-PC-434 | January 10, 2017   Page 10 of 10
    

Document Info

Docket Number: 45A04-1602-PC-434

Filed Date: 1/10/2017

Precedential Status: Precedential

Modified Date: 4/17/2021