James Matthew Hayes v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 13 2020, 9:24 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy E. Karozos Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General
Jonathan O. Chenoweth Samuel J. Dayton
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Matthew Hayes, May 13, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-2538
v. Appeal from the Greene Circuit
Court
State of Indiana, The Honorable Lucas M. Rudisill,
Appellee-Respondent Magistrate
Trial Court Cause No.
28C01-1603-PC-3
Crone, Judge.
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Case Summary
[1] James Hayes appeals the denial of his petition for post-conviction relief (PCR)
claiming that the post-conviction court erred in determining that he had not met
his burden to establish that he was denied effective assistance of trial counsel.
Finding no clear error, we affirm.
Facts and Procedural History
[2] The underlying facts as recited by another panel of this Court on direct appeal
are as follows:
On April 15, 2014, after a night of smoking methamphetamine,
Cory Slaven, Sierra Sipes, and Defendant James Hayes gathered
at a mobile home in Greene County. They brought with them the
accoutrements of methamphetamine production, including
Mucinex D, Coleman camp fuel, and iodized salt. Hayes
planned to make a fresh batch to smoke.
The mobile home belonged to Craig Blake, who lived there with
a friend. Hayes did not live there. Blake was briefly present on
April 15, but then left. At the bottom left corner at the end of the
mobile home, there was a small “no trespassing” sign.
At some point in the evening, Slaven and Sipes had a heated
argument, and Slaven left. Around 7:30 p.m., he called in an
anonymous tip to the Greene County Sheriff’s Department,
telling the dispatcher that there was a methamphetamine lab at
Blake’s mobile home. Lieutenant Marvin Holt and Deputy
Jordan Allor proceeded to the property in a marked police car,
but did not use the lights or sirens. They parked out front and
followed a gravel path that led to the main entrance of the home.
They used flashlights to illuminate their way.
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The officers came up to a sliding glass door, knocked on it, and
asked for Blake. From the doorway, they could see Sipes and
Hayes sitting in the dark on a couch. Lieutenant Holt
immediately recognized Hayes from an outstanding arrest
warrant issued two days prior. He ordered Hayes to exit the
home. Hayes eventually complied, after secreting away a two-
liter bottle underneath a jacket.
Hayes was placed in handcuffs and patted down. Lieutenant Holt
discovered a wet paper towel wrapped in cellophane giving off a
strong chemical odor. Hayes confirmed that it was
methamphetamine. The officers then applied for, and were
granted, a warrant to search the mobile home. During the
execution of that warrant, officers found the two-liter bottle,
which held active methamphetamine solution, along with other
methamphetamine manufacturing paraphernalia.
On April 23, 2014, the State charged Hayes with class B felony
dealing in methamphetamine, class D felony possession of
methamphetamine, and alleged that he was an habitual
substance offender. On August 22, 2014, the State added a
charge of class B felony conspiracy to commit dealing in
methamphetamine. Prior to trial, Hayes filed a motion to
suppress, arguing that the officers’ conduct violated his rights
under the United States and Indiana Constitutions. The trial
court denied his motion. Hayes renewed his argument by
objecting at trial to the evidence obtained at the mobile home,
and the trial court again ruled against him. Following the
November 2014 [bifurcated] trial, the jury found Hayes guilty as
charged, and the trial court sentenced him to an aggregate
sentence of thirty-two years imprisonment.
Hayes v. State, No. 28A01-1412-CR-554, 2015 WL 5088829, slip op. at *1 (Ind.
Ct. App. Aug. 28, 2015) (footnote omitted). Hayes filed a direct appeal arguing
that the trial court abused its discretion in admitting certain evidence at trial
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that he alleged was obtained by law enforcement in violation of his rights under
the United States and Indiana Constitutions. Finding no constitutional
violations, another panel of this Court affirmed his convictions. Id. at *3.
[3] Hayes filed a pro se petition for post-conviction relief that was amended by
counsel on October 2, 2018. In his amended petition, he alleged that he was
denied his right to effective assistance of trial counsel due to his counsel’s
failure to object to the admission of Exhibit 32 during the habitual substance
offender portion of his trial. Exhibit 32 “contained a certified Judgment of
Conviction, Pronouncement of Sentence, and Verdict Forms for [Hayes’s]
crimes of possession of methamphetamine and possession of paraphernalia
from 2008.” Appealed Order at 1. Exhibit 32 “contained references to or
information about at least 20 prior criminal convictions and/or juvenile
offenses of [Hayes’s], only two of which were necessary to prove an element or
elements of the State’s habitual substance offender charge.” Id. Following a
hearing, the post-conviction court entered findings of fact and conclusions of
law denying the petition for relief. This appeal ensued. Additional facts will be
provided as necessary.
Discussion and Decision
[4] Hayes contends that the post-conviction court erred in denying his PCR
petition. Post-conviction proceedings do not offer the petitioner a super appeal;
rather, subsequent collateral challenges must be based on grounds enumerated
in the post-conviction rules. McKnight v. State, 1 N.E.3d 193, 199 (Ind. Ct. App.
2013). These rules limit the scope of relief to issues unknown or unavailable to
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the petitioner on direct appeal. Id. The petitioner in a PCR proceeding “bears
the burden of establishing grounds for relief by a preponderance of the
evidence.” Ind. Post-Conviction Rule 1(5); Humphrey v. State, 73 N.E.3d 677,
681 (Ind. 2017). When issuing its decision to grant or deny relief, the post-
conviction court must make findings of fact and conclusions of law on all issues
presented. Ind. Post-Conviction Rule 1(6); Humphrey, 73 N.E.3d at 682.
[5] We review a post-conviction court’s denial of a PCR petition for clear error.
Massey v. State, 955 N.E.2d 247, 253 (Ind. Ct. App. 2011). To prevail on
appeal, the petitioner must show that the evidence as a whole leads unerringly
and unmistakably to a conclusion opposite the one reached by the post-
conviction court. Ellis v. State, 67 N.E.3d 643, 646 (Ind. 2017). In conducting
our review, we neither reweigh evidence nor judge witness credibility; rather,
we consider only the evidence and reasonable inferences most favorable to the
judgment. McKnight, 1 N.E.3d at 199.
[6] Hayes maintains that he was denied his constitutional right to effective
assistance of counsel. To prevail on an ineffective assistance of counsel claim,
he must satisfy two components: he must demonstrate both deficient
performance and prejudice resulting from it. Strickland v. Washington, 466 U.S.
668, 687 (1984). Deficient performance is “representation [that] fell below an
objective standard of reasonableness, [where] counsel made errors so serious
that counsel was not functioning as ‘counsel’ guaranteed to the defendant by
the Sixth Amendment.” Passwater v. State, 989 N.E.2d 766, 770 (Ind. 2013).
We assess counsel’s performance based on facts that are known at the time and
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not through hindsight. Shanabarger v. State, 846 N.E.2d 702, 709 (Ind. Ct. App.
2006), trans. denied.
[7] “[C]ounsel’s performance is presumed effective, and a defendant must offer
strong and convincing evidence to overcome this presumption.” Ritchie v. State,
875 N.E.2d 706, 714 (Ind. 2007). “Tactical or strategic decisions will not
support a claim of ineffective assistance,” and we therefore afford those
decisions great deference. McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002)
(citation omitted). We evaluate counsel’s performance as a whole. Flanders v.
State, 955 N.E.2d 732, 739 (Ind. Ct. App. 2011), trans. denied (2012). “Strickland
does not guarantee perfect representation, only a reasonably competent
attorney.” Hinesley v. State, 999 N.E.2d 975, 983 (Ind. Ct. App. 2013), trans.
denied (2014). Prejudice occurs when a reasonable probability exists that, but
for counsel’s errors, the result of the proceeding would have been different.
Passwater, 989 N.E.2d at 770. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Mitchell v. State, 946
N.E.2d 640, 643 (Ind. Ct. App. 2011), trans. denied.
[8] “Although the performance prong and the prejudice prong are separate
inquiries, failure to satisfy either prong will cause the claim to fail.” Baer v.
State, 942 N.E.2d 80, 91 (Ind. 2011). “If we can easily dismiss an ineffective
assistance claim based upon the prejudice prong, we may do so without
addressing whether counsel’s performance was deficient.” Henley v. State, 881
N.E.2d 639, 645 (Ind. 2008). “Most ineffective assistance of counsel claims can
be resolved by a prejudice inquiry alone.” Id.
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[9] Here, Hayes maintains that he was denied effective assistance of trial counsel
because his counsel failed to object to the trial court’s admission of Exhibit 32
during the habitual substance offender phase of trial. We agree with the post-
conviction court that this case can be resolved based upon the prejudice prong
alone, and this Court’s opinion in Kyles v. State, 888 N.E.2d 809 (Ind. Ct. App.
2008), is instructive in doing so.
[10] In Kyles, during the habitual offender phase of the trial, the State introduced
into evidence certified copies of judgments of conviction stating that the
defendant had been previously convicted of class D felony theft, first in 1997
and again in 2007. Id. at 814. The judgment of conviction for the 1997 theft
contained handwritten statements indicating that the defendant was convicted
of class B misdemeanor battery in relation to the theft offense and that his prior
criminal history included six true findings as a juvenile, fourteen misdemeanor
convictions, and two other felony convictions. Id. The defendant moved for a
mistrial which was denied by the trial court, and he was found by the jury to be
a habitual offender. Id.
[11] The defendant appealed arguing that the trial court erred in denying his motion
for mistrial because the information concerning his prior criminal history “was
so prejudicial that it absolutely foreclosed any possibility” that the jury would
find in his favor on the habitual offender allegation. Id. This Court noted that
in the context of habitual offender determinations where the State need only
prove beyond a reasonable doubt that a defendant has been convicted of two
prior unrelated felonies, see Ind. Code § 35-50-2-8, our supreme court has
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consistently stated that if the State introduces evidence that the defendant has
been convicted of more than two prior unrelated felonies, the introduction of
such additional felonies is “mere surplusage” and therefore harmless. Id. (citing
Wilson v. State, 511 N.E.2d 1014, 1017 (Ind. 1987); Golden v. State, 485 N.E.2d
51, 56 (Ind. 1985)). Accordingly, in Kyles, we failed “to see how the inclusion
of additional felony and non-felony offenses, though voluminous, substantially
prejudiced the jury’s decision.” Id.
[12] During the habitual substance offender phase of the trial here, the State
introduced into evidence certified copies of judgments of conviction stating that
Hayes was convicted of class D felony possession of methamphetamine in 2005
and 2008, and class D felony possession of marijuana in 2013. One of the
State’s exhibits, Exhibit 32, which was admitted without objection, contained
references to or information about numerous other prior criminal convictions
and/or juvenile offenses. At the conclusion of this phase of trial, the jury
indeed found Hayes to be a habitual substance offender. However, as in Kyles,
we fail to see how the admission of Hayes’s additional criminal history, though
voluminous, could have substantially prejudiced the jury’s ultimate decision.
We acknowledge that neither Kyles nor the precedent it relies upon are
procedurally identical to the present case, as none of those cases involved post-
conviction proceedings or a claim of prejudice in the context of ineffective
assistance of counsel. Nevertheless, we think that any error by counsel in
failing to object to the admission of evidence, when that admission of evidence
would have been considered surplusage and ruled harmless, at most, on direct
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appeal, surely does not rise to the level of a denial of the Sixth Amendment
right to effective assistance of counsel.
[13] Moreover, we agree with the State that there is nothing in the record to show
that the jury reviewed or ever learned of the surplus information contained in
Exhibit 32 such that Hayes could demonstrate that he suffered prejudice. First,
the record reflects that, while testifying, the State’s sponsoring witness did not
refer to Hayes’s additional criminal history contained in the exhibit, and there is
no indication that the State ever moved to publish the exhibit. Trial Tr. Vol. 4
at 765. During post-conviction proceedings, Hayes’s trial counsel testified that
he did not believe the exhibit was in fact published because in his experience he
had never known an exhibit to be passed to the jury absent a motion. PCR Tr.
Vol. 2 at 13-15. The post-conviction court surmised that, although evidently
not published, Exhibit 32 was likely “included with the exhibits and documents
that would have been accessible to the jurors in the jury room during
deliberations consistent with local practice.” Appealed Order at 2. Still, Hayes
has not convinced us that this is the case. Based upon the trial transcript
presented, we are unable to determine whether the jury had access to Exhibit
32, as any discussion by counsel regarding exhibits traveling to the jury room
took place off the record. It is well settled that the appellant bears the burden of
presenting to this Court a record that is complete with respect to the issues
raised on appeal. Clark v. State, 562 N.E.2d 11, 13 (Ind. 1990). This burden
includes the duty to ensure that the appellate court has before it a complete
transcript of the proceedings or, where none is available, an affidavit setting
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forth the content of the proceedings. See Ind. Appellate Rule 31. Hayes has not
submitted an affidavit stating that Exhibit 32 was sent to the jury room, and,
unlike the post-conviction court, we will not speculate that it was. 1
[14] In sum, Hayes has failed to demonstrate that there is a reasonable probability
that but for his trial counsel’s alleged error, the result of the habitual substance
offender proceeding would have been different. Thus, we find no clear error in
the post-conviction court’s conclusion that Hayes did not meet his burden of
establishing ineffective assistance concerning his trial counsel’s failure to object
to the admission of Exhibit 32. Finding no clear error in the post-conviction
court’s judgment, we affirm its denial of Hayes’s PCR petition.
[15] Affirmed.
Bailey, J., and Altice, J., concur.
1
Hayes’s trial counsel testified that, even assuming Exhibit 32 was sent to the jury room, the jury deliberated
for such a short time that “there’s no way” the jury would have had time to review it. PCR Tr. Vol. 2 at 15.
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