Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be

                                                               FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                   Aug 13 2012, 9:37 am
collateral estoppel, or the law of the
case.
                                                                    CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




APPELLANT PRO SE:                                ATTORNEYS FOR APPELLEE:

KEDRICE DORSEY                                   GREGORY F. ZOELLER
Michigan City, Indiana                           Attorney General of Indiana

                                                 J.T. WHITEHEAD
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KEDRICE DORSEY,                                  )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 46A04-1109-PC-563
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                    APPEAL FROM THE LAPORTE SUPERIOR COURT
                         The Honorable Kathleen B. Lang, Judge
                             Cause No. 46D01-0905-PC-78


                                      August 13, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

      Kendrice Dorsey appeals the denial of his petition for post-conviction relief

challenging his conviction for Class A felony possession of cocaine with intent to deliver.

We affirm.

                                          Issues

      Dorsey raises four issues, which we consolidate and restate as:

              I.     whether his freestanding claims of error are available
                     for appellate review; and

              II.    whether he received ineffective assistance of trial
                     counsel.

                                          Facts

      The facts relevant to Dorsey’s conviction are:

                      On April 27, 2003, at approximately 6:30 p.m.,
              Michigan City Police Officer Marty Corley (“Officer
              Corley”) received a radio dispatch regarding an accident
              involving either personal injury or property damage at the
              intersection of Eighth and Franklin Streets. Officer Corley
              proceeded to the referenced intersection, but did not observe
              indications of an accident. Officer Corley then responded to a
              second dispatch, then describing a “fight in progress” at the
              nearby intersection of Ninth and Oak Streets.
                      Officer Corley saw Dorsey, whom he knew from prior
              contacts, walking away from the area. An individual known
              only as Donald flagged down Officer Corley and pointed to
              Dorsey, stating that Dorsey “was the problem.” (Tr. 69).
              Officer Corley began to drive toward Dorsey, observing him.
              Dorsey moved toward his father, Bubble Gay (“Gay”), who
              had previously been walking approximately twenty-five to
              thirty feet away from Dorsey. Dorsey passed a clear plastic
              bag to Gay, and Gay “cuffed” the bag, closing his hand
              immediately over it. (Tr. 71.) Dorsey and Gay came to a
              stop in front of a house on Tenth Street.


                                            2
                    Officer Corley stopped his vehicle, exited and began to
             question Dorsey about the fight. Gay moved his free hand to
             cover the hand holding the plastic bag. Officer Corley turned
             his attention to Gay and asked what was in the bag. Gay
             replied “nothing,” but threw a clear plastic bag to the ground.
             Officer Corley picked up the discarded bag and could see that
             it contained individually packaged white rocks, consistent
             with the appearance of crack cocaine.
                    Officer Corley then began to question the men about
             the contents of the bag, when Dorsey began to walk away.
             Officer Corley told him to stop, but Dorsey refused. Officer
             Corley stated, “I’m not going to chase [you]. I know [who]
             you are. I’ll just get a warrant for your arrest.” (Tr. 75.)
             Dorsey responded, “go ahead and get the warrant,” and began
             to run. (Tr. 75.) Officer Corley radioed for assistance, and
             Officer Tony McClintock (“Officer McClintock”) responded.
             Officer McClintock pursued Dorsey on foot, and Officer
             Corley gave chase in his vehicle. Ultimately, Dorsey and
             Gay were apprehended in front of an apartment complex on
             Tenth Street. Both were arrested.
                    While Dorsey was in custody, Detective Al Bush
             began to question Dorsey about a shooting that Dorsey
             allegedly witnessed. Dorsey indicated that he wanted to talk
             to Detective Mark Swistek, because “the dope belonged to
             him and did not belong to Gay.” (Tr. 138.) In a tape-
             recorded statement, Dorsey indicated that he sold cocaine
             because he could not find employment. On the evening in
             question, he had been in possession of thirty-five rocks of
             crack cocaine, and had sold fifteen. However, Dorsey had
             gotten involved in a fight with his girlfriend and the police
             were summoned. He began to walk away, with the twenty
             remaining rocks and $482.00 in cash.
                    On April 23, 2003, Dorsey was charged with Dealing
             in Cocaine and, on December 16, 2003, a jury found him
             guilty as charged. On January 28, 2004, Dorsey was
             sentenced to fifty years imprisonment.

Dorsey v. State, No. 46A03-0409-CR-394, slip op. 3-4 (Ind. Ct. App. Oct. 4, 2005).

      Dorsey filed a direct appeal arguing, among other things, that there was

insufficient probable cause because the officer present in court lacked first-hand


                                           3
knowledge of Dorsey’s possession of cocaine, that his confession was erroneously

admitted into evidence because it was procured by a promise that Dorsey’s father would

be released, and that the trial court erroneously admitted evidence seized during an

investigatory stop because the stop was not supported by reasonable suspicion. We

affirmed his conviction in a memorandum decision. See Dorsey, No. 46A03-0409-CR-

394.

       Dorsey then filed a petition for post-conviction relief, which was denied after a

hearing. Dorsey now appeals.

                                         Analysis

       Generally, the completion of the direct appeal process closes the door to a criminal

defendant’s claims of error in conviction or sentencing. Pruitt v. State, 903 N.E.2d 899,

905 (Ind. 2009). However, defendants whose appeals have been rejected are allowed to

raise a narrow set of claims through a petition for post-conviction relief. Id. (citing Ind.

Post-Conviction Rule 1(1)). “The scope of the relief available is limited to ‘issues that

were not known at the time of the original trial or that were not available on direct

appeal.’” Id. (citation omitted). “Issues available but not raised on direct appeal are

waived, while issues litigated adversely to the defendant are res judicata.” Id.

       A post-conviction court must make findings of fact and conclusions of law on all

issues presented in the petition. Id. (citing P-C.R. 1(6)). The findings must be supported

by the facts, and the conclusions must be supported by the law. Id. “Our review on

appeal is limited to these findings and conclusions.” Id.



                                             4
       The petitioner bears the burden of proof, and an unsuccessful petitioner appeals

from a negative judgment. Id. A petitioner appealing from a negative judgment must

show that the evidence as a whole leads unerringly and unmistakably to a conclusion

opposite to that reached by the post-conviction court.       Id. We will disturb a post-

conviction court’s decision as being contrary to law only where the evidence is without

conflict and leads to but one conclusion and the post-conviction court has reached the

opposite conclusion. Id.

                            I. Freestanding Claims of Error

       Dorsey argues that the admission of certain evidence was fundamental error

because Officer Corley lacked reasonable suspicion, the contents of the baggie were not

in plain view, and his confession was not voluntary. He also argues that fundamental

error occurred because there was an insufficient factual basis to support the arrest

warrant.

       The post-conviction court concluded:

              The Petitioner has not raised any free-standing claims in his
              petition. If any free-standing claims had been made, such
              claims were available to be raised on direct appeal and are
              waived. See Timberlake, 753 N.E.2d at 597-98. To the
              extent that such issues were raised on direct appeal, the Court
              of Appeals decision is res judicata and now bars those claims.

App. pp. 246-47. Dorsey has not provided us with a copy of his post-conviction relief

petition and makes no argument that he raised the freestanding claims of error in his post-

conviction petition. In fact, at the post-conviction relief hearing, Dorsey agreed that the

only available issue was ineffective assistance of counsel. See Tr. pp. 72, 74. To the


                                              5
extent Dorsey did not raise these freestanding claims in his post-conviction relief petition,

he may not raise them for the first time on appeal. See Allen v. State, 749 N.E.2d 1158,

1171 (Ind. 2001) (“Issues not raised in the petition for post-conviction relief may not be

raised for the first time on post-conviction appeal.”), cert. denied.

       Even if these issues were raised in his petition for post-conviction relief, they are

either waived because they were available at the time of his direct appeal or res judicata

because they were decided on direct appeal. See Pruitt, 903 N.E.2d at 905. Further,

Dorsey cannot avoid the application of the waiver doctrine by framing the issues as

fundamental error in post-conviction relief proceedings. See State v. Hernandez, 910

N.E.2d 213, 216 (Ind. 2009) (rejecting fundamental error argument in post-conviction

relief proceedings); Canaan v. State, 683 N.E.2d 227, 235 n.6 (Ind. 1997) (noting that

while concerns over due process do sometimes merit invocation of a fundamental error

exception to the contemporaneous objection rule on direct appeal, its availability as an

exception to the waiver rule in post-conviction proceedings is generally limited to

circumstances involving the deprivation of the Sixth Amendment right to effective

assistance of counsel or an issue demonstrably unavailable to the petitioner at the time of

his or her trial and direct appeal), cert. denied. Thus, Dorsey’s freestanding claims of

error are not available for appellate review.

                           II. Ineffective Assistance of Counsel

       Dorsey also argues that he received ineffective assistance of trial counsel. “To

establish a post-conviction claim alleging the violation of the Sixth Amendment right to

effective assistance of counsel, a defendant must establish before the post-conviction

                                                6
court the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L.Ed.2d 674 (1984).” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010), cert.

denied.   First, a defendant must show that counsel’s performance was deficient by

establishing that counsel’s representation fell below an objective standard of

reasonableness and that “‘counsel made errors so serious that counsel was not functioning

as ‘counsel’ guaranteed to the defendant by the Sixth Amendment.’”              Id. (quoting

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). A defendant must also show that the

deficient performance prejudiced the defense by establishing there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Id. “Further, counsel’s performance is presumed effective,

and a defendant must offer strong and convincing evidence to overcome this

presumption.” Id.

                       A. Recording of Probable Cause Hearing

      Dorsey appears to argue that counsel was ineffective for failing to investigate and

raise the issue of whether the probable cause hearing was recorded. Dorsey first objects

to the following conclusion by the post-conviction court:

             8. Probable Cause - Petitioner alleges that his trial counsel
             was ineffective for failing to investigate or raise the issue of
             the failure to record the probable cause hearing. The issue of
             whether there was insufficient evidence to establish probable
             cause was raised on appeal and the Court of Appeals decided
             adversely to Petitioner on this issue. The Court of Appeals
             decision is res judicata and any challenge to the sufficiency of
             probable cause is barred. In addition, Petitioner was aware of
             this issue on appeal and failed to request that the probable
             cause hearing be transcribed. To the extent the issue could
             have been raised on appeal and was not, it has been waived.

                                            7
App. p. 248.

       Dorsey argues that the claim could not have been res judicata and waived at the

same time. It appears to us, however, that the post-conviction court was explaining that,

because Dorsey asserted on direct appeal that the testimony at the probable cause hearing

was insufficient to establish probable cause and we decided it was, he may not challenge

the sufficiency of probable cause in post-conviction proceedings. Similarly, the post-

conviction court correctly observed that any freestanding claim of error related to the

recording of the probable cause hearing was not available in post-conviction proceedings

because it was known and available at the time of Dorsey’s direct appeal. Dorsey has not

established that this conclusion is contrary to law.

       Regarding whether the failure to investigate and raise the issue of the recording of

the probable cause hearing amounted to ineffective assistance of counsel, the post-

conviction court concluded:

               9. Petitioner has presented no evidence to prove that the
               probable cause hearing was not recorded. The information
               shows that the Court found probable cause based on the
               testimony of Detective Bush. If after the probable cause
               hearing, the Court determined that the facts submitted were
               not sufficient to establish probable cause, the Court would
               have ordered the Petitioner released. If indeed the probable
               cause hearing was not recorded, nothing in the statute
               requires the release of the Petitioner. Only the lack of
               probable cause triggers a release. In addition, even if the
               Petitioner could establish that the probable cause hearing was
               not recorded he must establish prejudice to prevail on a claim
               of ineffective assistance. Petitioner was not prejudiced as on
               direct appeal, the Court of Appeals held that there was
               probable cause for Petitioner’s arrest.


                                              8
Id.

       In an attempt to establish that the probable cause hearing was not recorded, Dorsey

relies on a 2003 pro se pretrial discovery request, which apparently did not result in the

production of a transcript of the probable cause hearing, and a February 2006 motion for

completion of the record, which was denied. Although it does not appear that a transcript

of the probable cause hearing has been produced, we are not convinced that the lack of

transcript based on these two requests establishes that the probable cause hearing was not

in fact recorded.

       Moreover, even if the probable cause hearing was not recorded, Dorsey has not

established that the lack of recording would have resulted in his immediate release.

Indiana Code Section 35-33-7-2 provides:

              (a) At or before the initial hearing of a person arrested
              without a warrant for a crime, the facts upon which the arrest
              was made shall be submitted to the judicial officer, ex parte,
              in a probable cause affidavit. In lieu of the affidavit or in
              addition to it, the facts may be submitted orally under oath to
              the judicial officer. If facts upon which the arrest was made
              are submitted orally, the proceeding shall be recorded by a
              court reporter, and, upon request of any party in the case or
              upon order of the court, the record of the proceeding shall be
              transcribed.

              (b) If the judicial officer determines that there is probable
              cause to believe that any crime was committed and that the
              arrested person committed it, the judicial officer shall order
              that the arrested person be held to answer in the proper court.
              If the facts submitted do not establish probable cause or if the
              prosecuting attorney informs the judicial officer on the record
              that no charge will be filed against the arrested person, the
              judicial officer shall order that the arrested person be released
              immediately.


                                             9
The issue before us is not whether there was probable cause to arrest Dorsey. We have

already decided there was. See Dorsey, No. 46A03-0409-CR-394, slip op. 5-6. The

issue is whether the failure to record a probable cause hearing requires immediate release.

       In support of his argument, Dorsey cites to State v. Davis, 770 N.E.2d 338 (Ind.

Ct. App. 2002), in which we affirmed the trial court’s granting of a motion to suppress

evidence seized during the execution of a telephonic search warrant. In Davis, the police

officer seeking the search warrant attempted to record the conversation with the judge but

the machine inexplicably failed to record it, resulting in the failure to comply with the

Indiana Code Section 35-33-5-8, the statute governing telephonic search warrants. We

concluded, “When, in addition to numerous procedural defects, the warrant conversation

is not recorded, as in this case, the result is a near total failure to comply with the

procedures set out in the statute.     The warrant in this case is more appropriately

characterized as nonexistent.” Davis, 770 N.E.2d at 342.

       Even in light of Davis, Dorsey has not established that trial counsel’s performance

regarding the regarding the recording of the probable cause hearing was deficient. Davis

is easily distinguishable because the telephonic search warrant statute is different from

the probable cause hearing statute. Moreover, the result in Davis was the suppression of

evidence, not his immediate release, which Dorsey suggests is the proper remedy for the

failure to record a probable cause hearing.

       As for prejudice, at the post-conviction relief hearing, Dorsey called Gregory

Lewis, the attorney who initially reviewed Dorsey’s case for post-conviction relief

proceedings. Lewis testified that he advised Dorsey that, even if the probable cause

                                              10
hearing was not recorded, Dorsey would not be entitled to relief because the probable

cause finding could be reconstructed. He testified that his research indicated that the

failure to record a probable cause hearing is “not a get out of jail free card.” Tr. p. 52.

Thus, because Davis is easily distinguishable from the facts of this case and based on

Lewis’s testimony, Dorsey has not established that the post-conviction court’s conclusion

on this issue is contrary to law.

                                    B. Continuing Objection

       Dorsey argues that trial counsel was ineffective because he failed to make a proper

continuing objection to the admission of certain evidence.        On this issue, the post-

conviction court concluded:

               14. The Court of Appeals found that Officer Corley’s own
               observations gave him a reasonable suspicion of criminal
               activity that justified the Petitioner’s detention.
               (Memorandum Decision, p. 9.). Accordingly, Petitioner
               cannot establish prejudice as an objection by trial counsel
               would not have been sustained. Petitioner’s claim of
               ineffective assistance of counsel based on the failure to [sic]
               evidence obtained at the time of his arrest must fail.

App. p. 250.

       On direct appeal, Dorsey argued that Officer Corley, acting on an anonymous tip,

lacked reasonable suspicion to conduct an investigatory stop. Dorsey, No. 46A03-0409-

CR-394, slip op. 7. On direct appeal, we stated that no contemporaneous objection was

made at trial and reviewed the record for fundamental error. Id. We concluded, “Officer

Corley had a reasonable suspicion that criminal activity might be afoot, to justify




                                              11
Dorsey’s detention.” Id. at 9. We held that Dorsey had not demonstrated fundamental

error.

         As an initial matter, although on direct appeal we stated that Dorsey did not make

a contemporaneous objection to the admission of the evidence, at the beginning of trial,

counsel renewed the motion to suppress and motion in limine and requested “a

continuing ongoing objection” to the introduction of any evidence subject to those

motions. App. p. 51. After discussing the matter, the trial court ruled, “I will note that

this is going to be an ongoing objection throughout the course of the trial, and my ruling

will be the same.” Id. at 52. Thus, contrary to Dorsey’s argument, we are not convinced

that the manner in which the continuing objection was made fell below an objective

standard of reasonableness.

         Dorsey also seems to suggest that the post-conviction court erroneously concluded

that he was not prejudiced by the failure to object. Based on our decision on direct

appeal, however, it is clear that Officer Corley had reasonable suspicion to detain Dorsey.

Thus, regardless of the propriety of trial counsel’s objection, Dorsey has not established

that an objection would have been sustained or that this issue would have been a basis for

reversing Dorsey’s conviction on direct appeal. Dorsey has not established that the post-

conviction court’s conclusion on this issue was contrary to law.

                                        Conclusion

         Dorsey’s freestanding claims of error are not available for appellate review.

Dorsey has not established that the post-conviction court’s conclusions regarding his

allegations of ineffective assistance of counsel are contrary to law. We affirm.

                                             12
      Affirm.

VAIDIK J., and MATHIAS, J., concur.




                                      13
