Jon A. Arnold v. State of Indiana , 61 N.E.3d 1171 ( 2016 )

FILED
Sep 26 2016, 9:17 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bart M. Betteau Gregory F. Zoeller
Betteau Law Office, LLC Attorney General of Indiana
New Albany, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jon A. Arnold, September 26, 2016
Appellant-Petitioner, Court of Appeals Case No.
88A01-1603-PC-677
v. Appeal from the Washington
Circuit Court
State of Indiana,
The Honorable Larry W.
Appellee-Respondent. Medlock, Judge
Trial Court Cause No.
88C01-1506-PC-329
Brown, Judge.
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[1] Jon A. Arnold appeals the denial of his petition for post-conviction relief. He
raises several issues for our review, which we consolidate and restate as whether
the post-conviction court erred in denying his petition for relief. We affirm.
Facts and Procedural History
[2] In November 2008, the State charged Arnold with buying timber without a
registration certificate as a class D felony under cause number 88C01-0811-FD-
181 (“Cause No. 181”). The information referenced Ind. Code § 25-36.5-1-10
and alleged that Arnold did “engage in the business of timber buying without
securing a registration, and while having a prior unrelated conviction for an
offense under this section.”1 Petitioner’s Exhibit 2. In September 2009, Arnold
pled guilty to purchasing timber without securing a registration certificate as a
class A misdemeanor, and the court sentenced him to one year, all of which
was suspended.2
1
In 2008, Ind. Code § 25-36.5-1-10 provided:
A person who:
(1) engages in business as a timber buyer without securing a registration or in
violation of this chapter; or
(2) refuses to permit inspection of the person’s premises, books, accounts, or records
as provided in this chapter;
commits a Class A misdemeanor. However, the offense is a Class D felony if the person
has a prior unrelated conviction for an offense under this section.
Ind. Code § 25-36.5-1-10 (eff. Jul. 1, 2001) (subsequently amended by Pub. L. No. 158-2013, § 292 (eff. Jul. 1,
2014) (substituting “Level 6 felony” for “Class D felony”)).
2
At the post-conviction hearing, the court took judicial notice of the probable cause affidavit and the guilty
plea hearing. The record does not include the guilty plea hearing transcript and probable cause affidavit,
although the court quotes portions of each in its orders. The Indiana Supreme Court has stated that, while
Ind. Evidence Rule 201(b)(5) is silent on whether a court must enter a document of which it takes judicial
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[3] On June 24, 2015, Arnold filed a petition for post-conviction relief alleging that
he was denied the effective assistance of counsel, that but for his counsel’s
errors he would not have pled guilty and insisted on going to trial, and that his
counsel overlooked defenses that would have likely changed the outcome of the
proceeding.
[4] On March 3, 2016, the post-conviction court held a hearing at which Arnold
testified and presented exhibits and the testimony of his trial counsel. Arnold
requested the court to admit the affidavits of Chad Anderson and Connie
Burton, and the court admitted the affidavits after striking several paragraphs
on the State’s objection that the paragraphs contained legal conclusions. In her
affidavit, Burton stated in part that no written contract existed for the sale of
notice into the record, the best practice is to enter the particular documents into the record. See Horton v.
State, 51 N.E.3d 1154, 1160 (Ind. 2016). In its March 10, 2016 order denying Arnold post-conviction relief,
the court stated that the following exchange occurred at the guilty plea hearing:
[Trial counsel]:
Jon, did you purchase some timber in Washington County, Indiana?
[Arnold]:
Yes.
[Trial counsel]:
And at that time you did not have a valid license to do so in Indiana, is that
correct?
[Arnold]:
That’s right.
[Trial counsel]:
And you knew that your license wasn’t valid and you didn’t, you weren’t
working on somebody’s else’s license either, is that correct?
[Arnold]:
That’s correct.
Appellant’s Appendix at 9.
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any trees; that her agreement with Arnold was that he would “cut the trees and
after all bills were paid, the profits [would be] split on a 50/50 basis”; that “[a]t
the time the agreement was made for Jon Arnold to cut the trees, [she] did not
know exactly how many trees were to be harvested” and “Arnold was simply to
cut all harvestable trees in a predetermined area.” Petitioner’s Exhibit 4.
Burton further stated that she did not know how much money she would
receive; that “[a]t the time of the agreement, Jon Arnold expressed that he was
unsure as to exactly how many trees would be cut or what the proceeds would
be”; that no money changed hands between herself and Arnold “until after the
trees were bought by the sawmill”; and that she was paid exactly as she should
have been pursuant to their agreement. Id. Anderson’s affidavit stated in part
that Burton was his mother.
[5] Arnold’s trial counsel testified “we live in a small community and I have known
Jon Arnold for some time and he has known me and I always knew him as a
timber cutter/timber buyer,” that “it seemed obvious on the face that this
gentleman whom I already knew, uh, did not have a license to purchase
timber,” and “I assumed and today it appears to me wrongly, uh, that he was
guilty of the crime charged.” Transcript at 13. Trial counsel testified “my
opinion has changed and I wished I had done it differently and advised Mr.
Arnold differently at the time.” Id. at 14. Trial counsel also testified that he did
not think Arnold is a well-educated person.
[6] On cross-examination, Arnold’s trial counsel stated that he would have
received and reviewed the probable cause affidavit and a copy of Arnold’s
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recorded statement to a conservation officer. When asked whether Arnold
“admitted to the conservation officer that what he did was illegal,” trial counsel
replied: “I believe that Mr. Arnold, at that time, operated under the same
illusion that I did that unless you had the piece of paper that said, uh, licensed
timber buyer that you, uh, you were guilty of the crime, uh, on it’s [sic] face.”
Id. at 16-17. When asked “you said he was under an illusion at the time, you
believed,” trial counsel testified “because neither [Arnold] nor I did the analysis
or even understood that, that analysis was available with respect to who was a
timber buyer and who was not. Because his reputation is he, he buys and sells
and cuts logs and I, I just assumed that’s who he was.” Id. at 17. He also
testified “the analysis that’s been done by [Arnold’s post-conviction counsel] [ ]
I did not do.” Id. Trial counsel indicated that Arnold was initially charged
with a felony, and when asked “[s]o, having a prior conviction and admitting to
the officer that what he was doing was illegal you still got a misdemeanor
agreement in that case,” trial counsel answered “[w]e negotiated an agreement
and resolved the case, yes.” Id. at 18. He further testified: “It appears to me
from reading the documents that purchasing on shares so that no interest in
property transfers between the, uh, logger and the landowner does not fit the
statute.” Id.[7] Arnold testified that Chad Anderson had asked him to cut some trees on his
mother’s property and sell them to the sawmills, that he said that he would “do
it on a fifty/fifty deal,” and that it was probably fewer than fifty trees. Id. at 21.
When asked “[w]hen the conservation officer came up to talk to you about it
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did you tell him immediately that, oh, as Ms. Campbell said, oh, I’m guilty, I
committed a crime,” Arnold stated “[y]eah, I probably did, I, I mean, I don’t
know for shore [sic],” “I been in a bigger business in the past,” and “you know,
I, so, I normally bought trees so, I guess I figured that, you know, I probably
had to have a (Inaudible), you know.” Id. at 21-22. Arnold indicated that he
had previously been found guilty of tree buying without a license in Scott
County and that, at that time, he had a sawmill, bought trees, and “wrote them
a check for the trees or there was a certain amount . . . [u]p front.” Id. at 22.
He testified that, after that, he left the sawmill business, “went to doing small
little jobs like this . . . for the neighbors basically to . . . cut just a few trees and
sell them to other mills,” and did the work “[o]n percentage.” Id. at 22-23.
When asked “[d]id you think at the time the way you were doing it required
you to have a license on shares,” Arnold answered “no, I didn’t figure I needed
the license on the shares.” Id. at 23. When asked why he decided to plead
guilty, Arnold testified “I just thought it would be a quick and easy deal, it
would be done and over with, you know. And pay ‘em a fine and, and such as
that.” Id. at 23-24. When asked “what did [trial counsel] tell you about,”
Arnold answered “[p]retty much told me the same thing” and “[h]e knew how
the system would worked [sic] and would just take care of it that way.” Id. at
24. When asked if his trial counsel ever discussed the legal definitions of tree
cutter or tree buyer, ever indicated that he might have defenses, or indicated
that he was not guilty of the offense, Arnold answered “[n]o, sir.” Id.Court of Appeals of Indiana | Opinion 88A01-1603-PC-677 | September 26, 2016 Page 6 of 21
[8] On cross-examination, Arnold indicated that he had been in the business for a
long time. When asked if True Dimensions Hardware, Inc., was his business,
Arnold answered he “was part owner, I was, yes.” Id. at 25. When asked
“And the Jon Arnold Lumber Company,” “And Jon Arnold Logging,” and
“Jon Arnold Lumber,” Arnold replied “Yes, ma’am.” Id. at 25-26. When
asked “so, you’ve had those separate logging business over the years,” Arnold
answered affirmatively. Id. at 26. He indicated that he had previously had a
license to buy timber and that he “had it off and on over the years.” Id. at 27.
When asked if his license was expired when he entered the guilty plea, he
answered that he believed so. On re-direct, Arnold indicated he had a high
school education and no legal training. The State requested the court to take
judicial notice of the probable cause affidavit and the plea hearing, and the
court did so.
[9] Arnold’s post-conviction counsel argued that Arnold was a timber cutter and
not a timber buyer, that he was not required to have a license, and that Arnold
was not in a position to know whether or not he was, in fact, guilty of the
offense. His counsel noted that it was his trial attorney’s responsibility to advise
him about the law, and that trial counsel “wasn’t able to provide that legal
analysis that was really . . . the crux of this.” Id. at 32. In response, the State
argued that Arnold told the conservation officer that he knew what he did was
illegal, that he had a conviction for buying timber without a license in the past,
and that he was well versed in what was required of him. The State contended
that “when you look at the definition of a timber buyer and buying . . . he meets
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the definitions.” Id. at 34-35. The State also asserted that, at the time, the
judge, prosecutor, defense attorney, and defendant all believed Arnold
committed a crime, that while trial counsel was gracious to talk about how he
maybe did not examine those issues, the burden is on Arnold to show that he
would have a likelihood of success at his argument and Arnold had not
demonstrated a likelihood of success.
[10] The court raised an issue regarding Burton’s neighbor, Jackson Warren, and
Arnold testified that there “was in question whether we’d got over the line or
not right there,” that Warren believed that two trees were on his property, that
Arnold did not believe they were on Warren’s property but he paid Warren for
those trees, and that he never separated the trees from the Burton timber. Id. at
39. Arnold indicated that he was not charged with a timber theft.
[11] The court issued an order dated March 10, 2016, denying Arnold’s petition for
post-conviction relief. The order states: “The Court finds that Jon A. Arnold
did not purchase timber without a license from Connie Burton. However, the
Court does find that pursuant to Mr. Arnold’s testimony at the PCR hearing he
did purchase timber from Jackson Warren without a license. Justice was
served.” Appellant’s Appendix at 9-10. On April 1, 2016, the State filed
proposed findings of fact and conclusion of law.
[12] The court issued findings of fact and conclusions of law dated April 11, 2016,
which provided in part:
FINDINGS OF FACT
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1. The Court took judicial notice of the plea and sentencing
hearing, as well as the probable cause affidavit from
[Cause No. 181].
*****
3. [Arnold] filed the petition for post conviction relief to
challenge conviction in [Cause No. 181] only after having
been charged in 88D01-1504-F6-213 with Buying Timber
without a Registration Certificate, Level 6 felony, Theft,
Level 6 felony, and Trespass, Class A misdemeanor,
which is still pending.
4. [Arnold] admitted under oath at the plea hearing in [Cause
No. 181] that on or about September 24, 2008, in
Washington County, Indiana, he engaged in the business
of timber buying without securing a registration.
5. [Arnold] admitted under oath at the plea hearing in [Cause
No. 181] that he was not working under someone else’s
license when he purchased the timber in Washington
County, Indiana.
*****
8. [Arnold’s] plea of guilty was made knowingly,
intentionally and voluntarily.
9. [Arnold] was represented, prior to and at the time of his
plea, by [Arnold’s trial counsel], who was hired by
[Arnold].
10. [Trial counsel] testified in this matter that his performance
was deficient, however that is only accurate if [trial
counsel] incorrectly interpreted the law stated in I.C. 25-
36.5-1, et. seq., which the Court finds that he did not.
11. [Arnold’s] attorney filed a discovery request and received
the discovery response prior to entry of the plea in [Cause
No. 181].
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12. The probable cause affidavit made available to the
petitioner’s attorney in assessing the criminal charges in
[Cause No. 181] indicated:
a. that [Arnold] engaged in buying timber from
Jackson Warren while not having a buyer’s license
when he knew he was required to, additionally the
petitioner admitted during the post-conviction
hearing he had paid Jackson Warren for timber he
had harvested from Jackson’s real property.
b. that [Arnold] admitted to the investigating officer
that he had engaged in logging the property of
Connie Burton and sold three loads of logs to the
Worley saw mill, while not having a buy’s [sic]
license when he knew he was required to;
c. that [Arnold] admitted to the investigating officer
that he had a prior conviction for buying timber in
Scott County;
d. that [Arnold] admitted to the investigating officer
that he had previously held a registration certificate
allowing him to be a timber buyer, but that it was
no longer valid;
e. that [Arnold] admitted to the investigating officer
that he knew it was illegal to purchase timber
without a license, but did not know his prior
conviction made the charge a felony;
f. that [Arnold] admitted to the investigating officer
that he had written a check to Connie Burton for
timber on September 9, 2008 for $1,000.00, as well
as cash;
g. that [Arnold] admitted to the investigating officer
that he had sold the timber he had logged from the
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Connie Burton property to the Worley saw mill in
Pekin, Indiana for $3,500.00;
h. that [Arnold] profited financially from his
transaction with Connie Burton;
i. that [Arnold] was a “timber buyer”, as described in
I.C. 25-36.5-1-1;
j. that Connie Burton was a “timber grower”, as
described in I.C. 25-36.5-1-1;
k. that the transaction between Connie Burton and the
petitioner was for “timber”, as described in I.C. 25-
36.5-1-1;
13. [Arnold] gave a recorded statement to the investigating
officer, which was made available to [trial counsel] prior to
the plea hearing, in which [Arnold] admitted that he acted
as a timber buyer while not having a registration certificate
and that he knew what he was doing was wrong.
14. [Trial counsel] negotiated a plea for [Arnold] whereby he
was given the privilege of probation on a misdemeanor
conviction in lieu of the felony he was charged with.
15. [Arnold] could have been convicted of a Class D felony
based upon his prior conviction Buying Timber without a
Registration Certificate, in violation of I.C. 25-36.5-1-10,
from Scott County, Indiana, in 72C01-0004-CF-27,
therefore he received a substantial benefit from the plea
agreement.
*****
20. [Trial counsel’s] performance did not fall below an
objective standard of reasonableness.
*****
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CONCLUSIONS OF LAW
*****
3. Labor expended in harvesting “timber” or arranging the
sale of harvested “timber” can be deemed “value” or
“consideration”, as stated in the definition of “buying” in
I.C. 25-36.5-1-1.
*****
15. [Arnold] has not shown that there was a reasonable
probability of success at trial in pursuing this issue. Segura
[v. State], 749 N.E.2d [496,] 503 [(Ind. 2001)].
*****
19. Petitioner has failed to meet his burden on any issue raised
in his petition. The law is with the State and against the
Petitioner.
Id. at 18-23.
Discussion
[13] Before discussing Arnold’s allegations of error, we note the general standard
under which we review a post-conviction court’s denial of a petition for post-
conviction relief. The petitioner in a post-conviction proceeding bears the
burden of establishing grounds for relief by a preponderance of the evidence.
Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5).
When appealing from the denial of post-conviction relief, the petitioner stands
in the position of one appealing from a negative judgment. Fisher, 810 N.E.2d
at 679. On review, we will not reverse the judgment unless the evidence as a
whole unerringly and unmistakably leads to a conclusion opposite that reached
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by the post-conviction court. Id. Further, the post-conviction court in this case
entered findings of fact and conclusions thereon in accordance with Indiana
Post-Conviction Rule 1(6). “A post-conviction court’s 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.” Id. In this
review, we accept findings of fact unless clearly erroneous, but we accord no
deference to conclusions of law. Id. The post-conviction court is the sole judge
of the weight of the evidence and the credibility of witnesses. Id.
[14] Arnold claims that his trial counsel was ineffective. Generally, to prevail on a
claim of ineffective assistance of counsel a petitioner must demonstrate both
that his counsel’s performance was deficient and that the petitioner was
prejudiced by the deficient performance. French v. State, 778 N.E.2d 816, 824
(Ind. 2002) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052(1984), reh’g denied). A counsel’s performance is deficient if it falls below an
objective standard of reasonableness based on prevailing professional norms.
Id. To meet the appropriate test for prejudice, the petitioner must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Id. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong
will cause the claim to fail. French, 778 N.E.2d at 824. Most ineffective
assistance of counsel claims can be resolved by a prejudice inquiry alone. Id.
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[15] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Clark v. State, 668
N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Ct. 1438 (1997).
[16] Arnold asserts that his trial counsel was ineffective as he failed to recognize that
Arnold was innocent because the criminal statute did not prohibit his actions.
In particular, he argues that he was not “a timber buyer because he never
acquired an ownership interest in Burton / Anderson’s timber.” Appellant’s
Brief at 6. He argues that he was only a timber cutter, contracted to provide a
service of cutting down trees for a fee, “not unlike persons in this State who
pick blueberries or bale hay and get paid by the amount picked or baled; no title
to the blueberries or hay ever passes.” Id. at 7. Arnold contends that if he had
been told he was innocent, he would not have pled guilty and would not have
insisted on going to trial.
[17] The State maintains that Arnold’s actions satisfied the definition of a timber
buyer and that Arnold’s assertion that he was not a buyer because he never
acquired an ownership interest in the timber is contradicted by his admission to
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the conservation officer that he paid Burton. The State argues that Arnold has
not shown that the outcome of the trial would have been different had the case
proceeded to trial.
[18] Because Arnold was convicted pursuant to a guilty plea, we analyze his claims
under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two main
types of ineffective assistance of counsel cases. Smith v. State, 770 N.E.2d 290,
295 (Ind. 2002). The first type is where the defendant’s lawyer fails to advise
the defendant on an issue that impairs or overlooks a defense, and the second is
where the defendant’s lawyer incorrectly advises the defendant as to penal
consequences. Id. Arnold raises the first type of issue, claiming that his trial
counsel failed to evaluate whether he was engaged in the business of buying
timber and failed to advise him that he could have been found not guilty. See
Soucy v. State, 22 N.E.3d 683, 685-686 (Ind. Ct. App. 2014) (the petitioner’s
claim of actual innocence fell within the first category of Segura).
[19] In Segura, the Court held “in order to establish that the guilty plea would not
have been entered if counsel had performed adequately, the petitioner must
show that a defense was overlooked or impaired and that the defense would
likely have changed the outcome of the proceeding.” 749 N.E.2d at 499. The
Court stated that “in the case of claims related to a defense or failure to mitigate
a penalty, it must be shown that there is a reasonable probability that a more
favorable result would have obtained in a competently run trial.” Id. at 507. If
a petitioner is convicted pursuant to a guilty plea “and later claims that his
counsel rendered ineffective assistance because counsel overlooked or impaired
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a defense, the petitioner must show that a defense was indeed overlooked or
impaired and that the defense would have likely changed the outcome of the
proceeding.” Maloney v. State, 872 N.E.2d 647, 650 (Ind. Ct. App. 2007).
[20] The Timber Buyers Registration Act (the “Act”), found at Ind. Code §§ 25-36.5-
1, was enacted to protect owners of land containing standing timber referred to
as timber growers. Roberts v. Voorhees, 453 N.E.2d 342, 343 (Ind. Ct. App.
1983). The provisions of the Act operate to protect the timber grower in two
ways. Id. Primarily, the Act insures that a timber grower will be paid for any
timber sold to a registered timber buyer. Id. A secondary goal of the Act is to
protect the timber grower from damage to the timber grower’s land resulting
from improper logging methods. Id. “The goals of the [Act] are met by
requiring all persons along the chain of commerce involved in the removal of
timber be registered.” Id. “This includes, timber buyers, their agents and sub
agents.” Id. at 344. See Ind. Code §§ 25-36.5-1-2 (registration of timber buyers),
-6 (issuance of registration certificates), -15 (issuance of an agent’s license).
“These parties are required to file a registration and bond with the Department
of Natural Resources.” Roberts, 453 N.E.2d at 344.
[21] Ind. Code § 25-36.5-1-1 defines certain terms in the Act and provides in part:
“Person” means an individual, partnership, firm, association,
business trust, limited liability company, or corporation.
*****
“Timber buyer” means a person engaged in the business of
buying timber from timber growers for sawing into lumber,
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processing, or resale, but does not include a person who
occasionally purchases timber for sawing or processing for his
own use and not for resale.
“Timber grower” means the owner, tenant, or operator of land in
this state who has an interest in, or is entitled to receive any part
of the proceeds from, the sale of timber grown in this state and
includes persons exercising lawful authority to sell timber for a
timber grower.
“Department” means the department of natural resources.
*****
“Agent” means an individual who represents a timber buyer in
effecting or attempting to effect purchases of timber.
“Buying” means acquiring an interest in property by the payment
of a price, value, or other consideration.
[22] Ind. Code § 25-36.5-1-2 provides in part that “no person shall engage in the
business of timber buying in the state of Indiana without a registration
certificate issued by the department.”
[23] Ind. Code § 25-36.5-1-3.2 (2008) related to adjudicative proceedings by the
Department to seek damages related to the wrongful activities of “(1) a timber
buyer; or (2) a person who cuts timber but is not a timber buyer (referred to as a
‘timber cutter’ in this section).”3 (Subsequently amended by Pub. L. No. 57-
2013, § 86 (eff. July 1, 2013)).
3
The term “timber cutter” is found in Ind. Code § 25-36.5-1-3.2 related to adjudicative proceedings and Ind.
Code § 25-36.5-1-3(h) related to the posting of a bond by a property owner in connection with the issuance of
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[24] Ind. Code § 25-36.5-1-10 governs the criminal penalty for violating the Act and
in 2008 provided:
A person who:
(1) engages in business as a timber buyer without securing a
registration or in violation of this chapter; or
(2) refuses to permit inspection of the person’s premises,
books, accounts, or records as provided in this chapter;
commits a Class A misdemeanor. However, the offense is a
Class D felony if the person has a prior unrelated conviction for
an offense under this section.
(Subsequently amended by Pub. L. No. 158-2013, § 292 (eff. Jul. 1, 2014)).
[25] In addition, Ind. Code § 25-36.5-1-9 provides that the Department may make
rules and regulations to carry out the provisions of the Act. 312 Ind. Admin.
Code 14-2-8 (2008) provides a definition of the phrase “[e]ngaged in the
business of buying timber” as follows:
“Engaged in the business of buying timber” means either of the
following:
(1) The exertion of control over the sale of timber as
demonstrated by any of the following occurrences:
(A) The purchase of timber directly or through an agent
from a timber grower.
a preliminary injunction or restraining order to prevent an alleged wrongful cutting by a timber cutter or
timber buyer.
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(B) The selection of which or how much timber is cut.
This clause does not include a person employed by
a timber grower to provide technical expertise
concerning timber valuation or management.
(C) The selection of a person to act as a feller, skidder,
or hauler.
(D) The direction of timber to a particular market.
(2) Negotiation with a timber grower for the right to purchase
timber.
(Subsequently readopted without amendment May 26, 2009).
[26] Arnold has the burden of establishing that a defense overlooked by his trial
counsel would have likely changed the outcome of the proceeding. See Fisher,
810 N.E.2d at 679; Segura, 749 N.E.2d at 499. Based on the evidence presented
at the post-conviction hearing, we conclude that Arnold has not met his burden.
[27] Ind. Code § 25-36.5-1-1 defines a timber buyer as a person “engaged in the
business of buying timber” from timber growers for sawing into lumber,
processing, or resale. In turn, 312 I.A.C. 14-2-8 provides a definition of
“[e]ngaged in the business of buying timber.” The administrative rule found at
312 I.A.C. 14-2-8 provides further guidance as to the persons who are timber
buyers under the Act, and we note that Arnold does not cite to the definition in
312 I.A.C. 14-2-8 or argue that he could not have been engaged in the business
of buying timber as defined under that rule. According to the definition, a
person engages in the business of buying timber by exerting control over the
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sale of timber, as demonstrated by certain occurrences, or by negotiating with a
timber grower for the right to purchase timber. See 312 I.A.C. 14-2-8.
[28] In her affidavit, Burton states that she and Arnold agreed that he would cut
trees on her property and that the profits would be split on a fifty/fifty basis.
Also, Arnold testified that Anderson asked him to cut some trees on Burton’s
property and “sell ‘em . . . to the sawmills” and that he “said [he] would do it
on a fifty/fifty deal.” Transcript at 21. Arnold also testified that he agreed to
pay, and did pay, Warren for two trees that Arnold had cut and Warren
believed were on his property. Arnold did not present any evidence that a
person other than himself negotiated the sale of the timber on Burton’s
property. Arnold has not established that he did not “[n]egotiat[e] with a
timber grower for the right to purchase timber” under 312 I.A.C. 14-2-8(2).
[29] In addition, Burton states in her affidavit that she did not know exactly how
many trees were to be harvested and that Arnold agreed “to cut all harvestable
trees in a predetermined area.” Petitioner’s Exhibit 4. Arnold testified he
agreed to sell the trees on Burton’s land “to the sawmills” and that he paid
Warren for trees that Warren believed were on his property. Transcript at 21.
He also testified that he “went to doing small little jobs like this” to “cut just a
few trees and sell them to other mills.” Id. at 22-23. Arnold does not challenge
the finding that the timber he had logged from the Burton property was sold to
the Worley saw mill. He did not present evidence that he did not select which
or how much timber was cut, that he was employed by Burton solely to provide
technical expertise concerning timber valuation or management, that he did not
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select the person or persons to act as the feller, skidder, or hauler, or that he did
not direct the timber to a particular market such as the Worley saw mill.
Arnold has not established that he did not “exert[] control over the sale of
timber” under 312 I.A.C. 14-2-8(1). See 312 I.A.C. 14-2-8(1) (the exertion of
control over the sale of timber can be demonstrated by the selection of which or
how much timber is cut, the selection of a person to act as a feller, skidder, or
hauler, and the direction of timber to a particular market).
[30] Based on the evidence presented at the post-conviction hearing and Ind. Code
§§ 25-36.5-1 and 312 I.A.C. 14-2-8, we conclude that Arnold has not established
that a defense overlooked by his trial counsel, namely, the argument that
Arnold was not engaged in the business of timber buying, would likely have
changed the outcome of the proceeding. We cannot say that the evidence as a
whole unerringly and unmistakably leads to a conclusion opposite that reached
by the post-conviction court. See Richardson v. State, 800 N.E.2d 639, 646-647
(Ind. Ct. App. 2003) (holding that the petitioner failed to show that he was
prejudiced by his counsel’s failure to file a motion to dismiss), trans. denied.
Conclusion
[31] For the foregoing reasons, we affirm the post-conviction court’s denial of
Arnold’s petition.
[32] Affirmed.
Robb, J., and Mathias, J., concur.
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