MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
                                                                    Oct 30 2018, 5:30 am
regarded as precedent or cited before any
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
Jonah Long                                               Curtis T. Hill, Jr.
Pendleton, Indiana                                       Attorney General of Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jonah Long,                                              October 30, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1711-PC-2804
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Richard
Appellee-Respondent.                                     Hagenmaier, Master
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G21-1610-PC-41034



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018     Page 1 of 24
                                Case Summary and Issue
[1]   Following a bench trial, Jonah Long was convicted of dealing in

      methamphetamine, a Class A felony, and resisting law enforcement, a Class A

      misdemeanor. The trial court sentenced Long to thirty years in the Indiana

      Department of Correction. On direct appeal, we affirmed Long’s conviction.

      Long v. State, No. 49A04-1308-CR-392 (Ind. Ct. App. Mar. 26, 2014), trans.

      denied. Thereafter, Long, pro se, filed a petition for post-conviction relief

      alleging ineffective assistance of both trial and appellate counsel which was

      denied by the post-conviction court. Long, still acting pro se, now appeals the

      denial of post-conviction relief, raising five issues for our review which we

      consolidate and restate as whether the post-conviction court erred in denying

      Long’s motion for post-conviction relief. Concluding the post-conviction court

      did not err, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts and procedural history of this case in Long’s direct

      appeal:


              On September 7, 2012, Indiana State Police Trooper Jeffrey Sego
              and several other officers conducted a narcotics investigation at a
              hotel in Indianapolis. Sego went to a room and knocked on the
              door. He knew that Long was registered as an occupant of the
              room. Kami Clemens opened the door. Clemens allowed Sego
              into the room, where he saw digital scales and glass pipes.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 2 of 24
        After speaking with Clemens, Sego advised the other officers to
        be on the lookout for Long, who was driving a silver Chrysler
        300. Police officer Adam Buchta was stationed near the hotel in
        an unmarked car. He ran a license check on Long and learned
        that Long’s license was suspended. Buchta also found a picture
        of Long, which he shared with Indiana State Trooper Dean
        Wildauer. Wildauer was also stationed in an unmarked car,
        farther from the hotel than Buchta.


        Later, Wildauer saw Long driving a silver Chrysler 300 toward
        the hotel. Long turned onto the street that accessed the hotel’s
        parking lot, but he failed to use his turn signal. Wildauer
        informed Buchta of Long’s failure to use his turn signal.


        Buchta saw Long approach the hotel. He activated his car’s
        lights to signal Long to stop. Long entered the hotel’s parking
        lot, “slammed [the car] into park,” and got out. Long ran away,
        disregarding Buchta’s commands to stop. He ran across a street
        and up a ramp to a nearby interstate highway. Buchta followed
        and watched Long run across the interstate, disrupting traffic.
        Long got away once he reached the other side.


        Buchta returned to Long’s car and took the keys out of the
        ignition. He also brought his canine to the Chrysler 300 and
        walked it around the car. The canine “alerted to the odor of a
        narcotic” coming from the car.


        Sego searched the 300 without a warrant. He found paperwork
        bearing Long’s name. He also found luggage in the trunk, and
        when he searched the luggage he saw a blue can of Doritos. Sego
        discovered that the bottom of the can could be unscrewed, and
        inside the bottom of the can he found two clear plastic baggies
        containing a substance that was later identified as
        methamphetamine. There was a total of 11.6 grams of
        methamphetamine in the baggies. Wildauer testified that the

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 3 of 24
              quantity of methamphetamine Sego discovered is generally
              associated with a dealer rather than a user, because a user will
              consume methamphetamine as soon as he or she acquires it.


              Later, Long talked with his acquaintance Tony Pedigo. Long
              told Pedigo he had to abandon his car at a hotel in Indianapolis
              because the police arrived. He further said he fled from the
              police by running across an interstate highway. Finally, Long
              told Pedigo he had left methamphetamine in the car.


              The State charged Long with dealing in methamphetamine,
              possession of methamphetamine, and resisting law enforcement.
              Long waived his right to a jury trial and was tried to the bench.


      Id. at *1-2 (citations omitted).


[3]   During the bench trial, Long’s trial counsel moved to suppress evidence

      resulting from the warrantless search of Long’s vehicle. The State argued that

      because a canine had alerted to the vehicle, the automobile exception to the

      warrant requirement permitted officers to conduct a warrantless search. The

      trial court inquired about the issue of abandonment and the parties presented

      brief argument on that issue before the trial court denied Long’s motion to

      suppress.


[4]   Long also testified that he was in a different city on the date of the incident and

      he had later learned someone else was driving his vehicle. The State objected

      on hearsay grounds because Long had learned who was driving his vehicle

      through the comments of a third party. Long’s trial counsel contended that

      Long’s testimony should be admissible as a statement against penal interest and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 4 of 24
      the trial court sustained the State’s objection. In Long’s offer to prove, he

      testified that his girlfriend’s best friend was driving his vehicle on the date of the

      incident and provided several photographs in support thereof.


[5]   On July 15, 2013, the trial court found Long guilty of dealing in

      methamphetamine, a Class A felony, and resisting law enforcement, a Class A

      misdemeanor. On July 29, 2013, the trial court sentenced Long to thirty years

      for dealing in methamphetamine and one year for resisting law enforcement

      with the sentences to be executed concurrently at the Indiana Department of

      Correction.


[6]   On direct appeal, Long’s appellate counsel raised three issues: (1) whether the

      trial court erred by denying his motion to suppress the evidence discovered

      during the warrantless search of his vehicle; (2) whether the trial court erred by

      excluding evidence that someone else may have committed the crimes; and (3)

      whether the evidence was sufficient to sustain his conviction for dealing in

      methamphetamine. Long, No. 49A04-1308-CR-392 at *2-4. A panel of this

      court affirmed the trial court in all respects. Id. at *5.


[7]   On September 19, 2016, Long filed a pro se petition for post-conviction relief.

      An evidentiary hearing was conducted on April 21, 2017, and on October 30,

      the post-conviction court issued written findings of fact and conclusions of law

      denying Long’s petition. Long now appeals. Additional facts will be supplied

      as necessary.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 5 of 24
                                 Discussion and Decision
                                      I. Standard of Review
[8]   It is well established that 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 post-conviction rules. Id. A claim of ineffective assistance of counsel is

      properly presented in a post-conviction proceeding if the claim was not

      presented on direct appeal and a claim of ineffective assistance of appellate

      counsel is also appropriate for post-conviction review. Id. Since post-

      conviction proceedings are civil in nature, a petitioner must establish his claims

      by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).


[9]   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 do not reweigh the

      evidence or reassess witness credibility and 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).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 6 of 24
[10]   Before proceeding to the merits of this appeal, we pause briefly to emphasize

       that pro se litigants without legal training are held to the same legal standards as

       licensed attorneys. Basic v. Amouri, 58 N.E.3d 980, 983 (Ind. Ct. App. 2016).

       Pro se litigants must adhere to the rules of procedure and must be prepared to

       accept the consequences of their failure to do so, including waiver for failure to

       present cogent argument on appeal. Id. at 983–84. An appellate brief should be

       prepared so that each judge, considering the brief alone and independent of the

       transcript, can intelligently consider each question presented. Pluard ex rel.

       Pluard v. Patients Comp. Fund, 705 N.E.2d 1035, 1038 (Ind. Ct. App. 1999),

       trans. denied. We “will not search the record to find a basis for a party’s

       argument” nor will we “search the authorities cited by a party in order to find

       legal support for its position.” Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct.

       App. 2012), trans. denied. And we must not become an “advocate for a party, or

       address arguments that are inappropriate or too poorly developed or expressed

       to be understood.” Basic, 58 N.E.3d at 984.


                          II. Ineffective Assistance of Counsel
[11]   The standard for ineffective assistance of counsel is the same standard for both

       trial and appellate counsel. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).

       We review claims of ineffective assistance of counsel under the two-prong test

       set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim

       of ineffective assistance of counsel, the petitioner must show his counsel’s

       performance was deficient and the lack of reasonable representation prejudiced

       him. Id. at 687.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 7 of 24
[12]   To satisfy the first prong, the petitioner must show counsel’s representation fell

       below an objective standard of reasonableness and counsel committed errors so

       serious petitioner did not have the “counsel” guaranteed by the Sixth

       Amendment of the United States Constitution. Garrett, 992 N.E.2d at 718-19.

       To satisfy the second prong, the petitioner must show a reasonable probability

       that, but for counsel’s errors, the result of the proceeding would have been

       different. Id. “A reasonable probability is a probability sufficient to undermine

       confidence in the outcome.” Strickland, 466 U.S. at 694. These two prongs are

       separate and independent inquiries. Manzano v. State, 12 N.E.3d 321, 326 (Ind.

       Ct. App. 2014), trans. denied, cert. denied, 135 S.Ct. 2376 (2015). Therefore, “if it

       is easier to dispose of an ineffectiveness claim on one of the grounds instead of

       the other, that course should be followed.” Talley v. State, 736 N.E.2d 766, 769

       (Ind. Ct. App. 2000).


[13]   Counsel is afforded “considerable discretion in choosing strategy and tactics,

       and we will accord those decisions deference.” Timberlake, 753 N.E.2d at 603.

       And we recognize a strong presumption counsel rendered adequate legal

       assistance. Id. In order to overcome this strong presumption, a petitioner must

       offer “strong and convincing evidence.” Smith v. State, 822 N.E.2d 193, 202

       (Ind. Ct. App. 2005), trans. denied.


                                               A. Judicial Bias
[14]   Long first argues both his trial and appellate counsel were ineffective for failing

       to raise the issue of judicial bias. Concluding Long waived the issue on post-


       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 8 of 24
       conviction relief, and that Long has failed to demonstrate prejudice even if

       properly presented, we disagree.


[15]   Because “[t]he law presumes that a judge is unbiased and unprejudiced[,]”

       merely asserting judicial bias does not make it so. Smith v. State, 770 N.E.2d

       818, 823 (Ind. 2002). “Such bias and prejudice exists only where there is an

       undisputed claim or where the judge expressed an opinion of the controversy

       over which the judge was presiding.” Id. Adverse rulings are not sufficient of

       themselves to establish bias or prejudice. Resnover v. State, 507 N.E.2d 1382,

       1391 (Ind. 1987). To rebut this presumption, a defendant “must establish from

       the judge’s conduct actual bias or prejudice that places the defendant in

       jeopardy.” Smith, 770 N.E.2d at 823.


[16]   As evidence of judicial bias, Long relies almost exclusively on the trial court sua

       sponte raising the issue of whether the abandonment exception supported the

       warrantless search of Long’s vehicle. The underlying facts reveal officers

       attempted to conduct a traffic stop on Long’s vehicle but Long disregarded their

       attempt and proceeded into a hotel’s parking lot, “slammed [the car] into park,”

       and ran away, further disregarding oral commands to stop. Long, No. 49A04-

       1308-CR-392 at *1. Officers discontinued a foot-pursuit once Long crossed

       interstate traffic and then walked a canine around Long’s vehicle which

       “alerted to the odor of a narcotic[.]” Id. A subsequent warrantless search of the

       vehicle revealed 11.6 grams of methamphetamine. Long’s trial counsel moved

       to suppress the evidence obtained from the warrantless search. At the

       suppression hearing, the State argued, relying on our supreme court’s opinion

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 9 of 24
       in State v. Hobbs, 933 N.E.2d 1281 (Ind. 2010), that a canine’s alert on Long’s

       vehicle provided an exception to the warrant requirement. Eventually, the trial

       court inquired:


               The Court:                Why is nobody talking about the
                                         abandonment issue?


               [The State]:              Well, because we already have State v. Hobbs,
                                         that I didn’t need to go into the abandonment
                                         issue. And we have a —


               The Court:                Better —


               [The State]:              — either way.


               The Court:                Isn’t it a better issue?


               [The State]:              I think, I think we have it either way.


       Trial Transcript, Volume I at 99.


[17]   With this background, the post-conviction court found:


               In this matter, the trial court never sought to adduce evidence,
               but instead, [Long]’s complaint to find bias or prejudice is in the
               trial court directing questions to the Party-Attorneys. [Long]
               argues, without citation to authority that the trial courts’ [sic]
               mere inquiry as to applicability of the doctrine of abandonment
               constitutes bias or prejudice on behalf of the State. However, the
               cases he points to regarding bias and prejudice primarily deal
               with the court’s questions to witnesses, or other matters which in
               some way reflect on the specific conduct or demeanor of the trial

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 10 of 24
               judge. Though [sic] his case law, [Long] presents no compelling
               authority to establish that the [trial] court’s questioning to party-
               attorneys is prohibited. Moreover, [Long] fails to establish that
               the judge’s suppression questioning was designed for some other
               purpose than to have the parties make argument on what seemed
               a pertinent area of law. [Long’s] failure to develop a cogent
               argument or provide adequate citation to authority or portions of
               the record generally results in waiver of [the] issue. These
               claim[s] ha[ve] been waived.


       Appellant’s Appendix, Volume 2 at 23-24 (citations omitted).


[18]   We agree with the post-conviction court that Long’s claims that trial and

       appellate counsel rendered ineffective assistance in failing to raise the issue of

       judicial bias are waived for lack of cogency. See Ross v. State, 877 N.E.2d 829,

       833 (Ind. Ct. App. 2007), trans. denied. Indeed, aside from a perfunctory

       assertion the trial court was biased because it inquired into an issue which was

       potentially favorable to the State, Long’s petition for post-conviction relief fails

       to advance a cogent argument as to why the trial court’s inquiry demonstrated

       actual bias or how the inquiry placed him in jeopardy. Smith, 770 N.E.2d at

       823. On direct appeal, we concluded “[t]he trial court sua sponte raised the

       issue of abandonment and gave both parties a chance to address it.” Long, No.

       49A04-1308-CR-392 at *2, n.1. And we continue to view the trial court’s

       inquiry as merely an opportunity for both parties to make an argument on the

       issue of abandonment.


[19]   Waiver notwithstanding, even assuming the trial court’s inquiry into the

       abandonment exception demonstrated bias and trial counsel’s performance was

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 11 of 24
       therefore deficient in failing to object, Long has still failed to demonstrate

       prejudice because the evidence was otherwise admissible under the automobile

       exception. The “automobile exception” to the warrant requirement allows

       police to search a vehicle without obtaining a warrant if they have probable

       cause to believe evidence of a crime will be found in the vehicle. Carroll v.

       United States, 267 U.S. 132, 153-54 (1925). This doctrine is grounded in two

       notions: 1) a vehicle is readily moved and therefore the evidence may disappear

       while a warrant is being obtained, and 2) citizens have lower expectations of

       privacy in their vehicles than in their homes. California v. Carney, 471 U.S. 386,

       391 (1985). One reason for this diminished expectation of privacy in a car and

       its contents is that cars travel along public highways and are subject to pervasive

       government regulation. Cady v. Dombrowski, 413 U.S. 433, 441 (1973). Most

       cases addressing the automobile exception arise in the context of an arrest or an

       investigatory stop of a motorist that gives rise to probable cause, but the

       exception is grounded in the mobility of the vehicle and its location in a public

       area.


[20]   As the Supreme Court explained in Carney, the automobile exception applies to

       vehicles that are readily mobile and are found in non-residential areas. 471

       U.S. at 392-93. Thus, an operable vehicle found in a residential area may not

       be searched under this exception, but one located in a non-residential area,

       whether by reason of a traffic stop or not, is subject to the exception. The

       theory underlying the exception for vehicles is that the vehicle is “being used for

       transportation.” Id. at 394.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 12 of 24
[21]   In State v. Hobbs, the case cited by the State in support of admitting the

       evidence, officers positioned themselves across from a restaurant where officers

       were aware the defendant, who was wanted on an outstanding felony arrest

       warrant, was employed. 933 N.E.2d at 1284. Officers observed the defendant

       emerge from the restaurant, place something in his vehicle, and return inside.

       Officers then entered the restaurant and arrested the defendant. The defendant

       refused to consent to a search of his vehicle and the officers conducted a canine

       sniff which resulted in a positive alert and a warrantless search. The defendant

       was charged in connection with marijuana and paraphernalia found inside his

       vehicle. Sua sponte, the trial court ruled the evidence was illegally seized

       because even though the canine alert provided probable cause to search the

       vehicle, this was insufficient to justify a warrantless search. On the State’s

       appeal, we reversed, holding the warrantless search of the vehicle was

       permissible under the automobile exception and the subsequent seizure

       therefore did not violate the Fourth Amendment or Article 1, Section 11 of the

       Indiana Constitution. State v. Hobbs, 915 N.E.2d 197 (Ind. Ct. App. 2009).


[22]   On transfer, our supreme court looked to Carroll and its progeny before

       reasoning:


               The defendant contends he “was not in any position to control
               any aspect of the vehicle.” But the automobile exception does
               not require that there be an imminent possibility the vehicle may
               be driven away. Maryland v. Dyson, 527 U.S. 465, 466-67 (1999).
               Under the exception, an operational vehicle is inherently mobile,
               whether or not a driver is behind the wheel or has ready access.
               With probable cause, this inherent mobility is enough to conduct

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 13 of 24
        a warrantless search under the automobile exception. Nothing in
        the record indicates that [the defendant]’s vehicle was not
        operational. Because [the defendant]’s admittedly mobile vehicle
        was in the parking area of a restaurant, it was subject to the
        automobile exception and no warrant was required to search the
        vehicle if the officers had probable cause to believe it contained
        evidence of a crime.


        Officers are not authorized to detain a person stopped under
        reasonable suspicion of a crime for a longer period than is
        required to resolve the suspicion. Illinois v. Caballes, 543 U.S.
        405, 407 (2005). But here [the defendant] was arrested with
        probable cause supported by a warrant for a previous unrelated
        crime. He was not detained based on suspicion of the crimes
        charged in this case, and his detention was not prolonged at all
        by the call for the dog or the subsequent search and seizure.


        The automobile exception requires probable cause to believe the
        vehicle contains evidence of a crime. The officers’ own
        observations of [the defendant] entering the vehicle and placing
        something inside gave probable cause to believe the contents of
        the car were possessed by [the defendant]. The subsequent dog
        sniff provided probable cause that the vehicle contained illicit
        drugs. Neuhoff v. State, 708 N.E.2d 889, 891 (Ind. Ct. App. 1999).
        It is well settled that a dog sniff is not a search protected by the
        Fourth Amendment. Caballes, 543 U.S. at 409. Accordingly, no
        degree of suspicion is required to summon the canine unit to the
        scene to conduct an exterior sniff of the car or to conduct the sniff
        itself.


        In sum, [the defendant]’s car was an operational vehicle in a
        public place; the dog sniff was not conducted under
        circumstances where [the defendant] was unconstitutionally
        seized, and the dog sniff provided probable cause that the car
        contained evidence of a crime. There therefore was no Fourth


Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 14 of 24
               Amendment violation in the search of [the defendant]’s car or the
               seizure of the contraband found in the car.


       933 N.E.2d at 1286-87 (some citations omitted).


[23]   We find the facts presented here sufficiently analogous to those of Hobbs as to

       control on the issue of the automobile exception. Officers’ observations of

       Long driving his vehicle removed any doubt as to whether the vehicle was

       operational and therefore “subject to the automobile exception and no warrant

       was required to search the vehicle if the officers had probable cause to believe it

       contained evidence of a crime.” Hobbs, 933 N.E.2d at 1286. This observation

       also gave officers probable cause to believe the contents of the vehicle were

       possessed by Long. And once a canine “alerted to the odor of a narcotic,”

       Long, No. 49A04-1308-CR-392 at *1, officers possessed probable cause that the

       vehicle contained illicit drugs. Neuhoff, 708 N.E.2d at 891. As in Hobbs,

       because Long’s vehicle was operational in a public place, the canine search

       occurred under circumstances where Long was not unconstitutionally seized,

       and the canine sniff produced probable cause to believe the vehicle contained

       evidence of a crime, a warrantless search did not violate the Fourth

       Amendment. 933 N.E.2d at 1286-87.


[24]   Therefore, because the evidence obtained from Long’s vehicle was admissible

       on a basis other than abandonment, Long has failed to demonstrate a

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

       would have been different. Garrett, 992 N.E.2d at 719. For this same reason,

       Long failed to demonstrate ineffective assistance of appellate counsel for failing
       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 15 of 24
       to raise the issue of judicial bias as fundamental error. See Allen v. State, 749

       N.E.2d 1158, 1168-69 (Ind. 2001) (holding that because claimed errors by trial

       counsel did not in themselves warrant relief, claims of ineffective assistance of

       appellate counsel for failure to raise the alleged errors by trial counsel would

       also fail), cert. denied, 535 U.S. 1061 (2002); Benefield v. State, 945 N.E.2d 791,

       805 (Ind. Ct. App. 2011) (holding that where an appellant has failed to prove

       ineffective assistance of trial counsel, a finding of fundamental error on appeal

       is excluded).


                            B. Admission of Commingled Evidence
[25]   Next, Long argues his trial counsel rendered ineffective assistance for failing to

       object to the admission of certain evidence on “appropriate grounds.”

       Appellant’s Brief at 29. In order to prove ineffective assistance of counsel due

       to the failure to object, Long must prove that an objection would have been

       sustained if made and that he was prejudiced by the failure. Timberlake v. State,

       690 N.E.2d 243, 259 (Ind. 1997), cert. denied, 525 U.S. 1073 (1999).


[26]   During Long’s trial, the State sought to admit evidence seized from a vehicle

       and a hotel room as State’s Exhibit Number 2. Trial Tr., Vol. I at 104. Long’s

       trial counsel objected to the admission of the evidence based on a “continuing

       objection that [the evidence was] seized illegally.” Id. at 105.


[27]   The exhibit was admitted over objection, but Long’s trial counsel then engaged

       in the following questioning with the sponsoring witness:



       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 16 of 24
        [Trial Counsel]:          Your Honor, if I can ask just a clarifying
                                  question on the Exhibit Number 2.


        [The Court]:              Okay.


        [Trial Counsel]:          Trooper, Exhibit Number 2 actually contains
                                  more than just the Doritos container, it has
                                  some pipes, a scale –


        [Trooper Sego]:           Yes.


        [Trial Counsel]:          --- in it. Those items were not found in the
                                  vehicle; is that correct?


        [Trooper Sego]:           Correct. Yes, ma’am.


        [Trial Counsel]:          They were found in the hotel room?


        [Trooper Sego]:           On a dresser in a hotel room.


        [Trial Counsel]:          That where [sic] Ms. Clemens was located?


        ***


        [Trooper Sego]:           Yes.


Id. at 106. Thereafter, the State proceeded to move for the admission of State’s

Exhibit Number 4, a lab report “entered by stipulation by the parties with a

caveat that there is a – it include [sic] a scale and two glass pipes which is [sic]

not at issue in this case.” Id. at 107. Long argues that because the exhibits


Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 17 of 24
       contained evidence not at issue in this case, his trial counsel was ineffective for

       not also objecting on grounds that the evidence was improperly commingled

       with other evidence.


[28]   The post-conviction court found:


               From the record it is clear that the State’s witnesses commingled
               and heat sealed the paraphernalia items recovered from the motel
               room, along with the Methamphetamine recovered from [Long]’s
               car.


               The Indiana Supreme Court has noted “[w]e generally presume
               that in a proceeding tried to the bench a court renders its
               decisions solely on the basis of relevant and probative evidence.”
               Coleman v. State, 558 N.E.2d 1059, 1062 (Ind. 1990). This
               longstanding principle has been termed “the judicial-temperance
               presumption.” The Court is convinced that a detailed trial record
               was made which allowed the trial court to readily comprehend
               what evidence was offered against [Long]. The clarity of the
               record allowed the trial court to disregard the extraneous
               paraphernalia. In this instance, the Court similarly applies the
               judicial-temperance presumption in favor of the trial court’s
               ability to disregard admittedly irrelevant evidence.


       Appellant’s App., Vol. 2 at 27-28. The court then concluded:


               10.      The record clearly explains that trial evidence was
                        mistakenly commingled. This court is persuaded that clear
                        evidence was presented at trial as to what items supported
                        a finding that [Long] was guilty of dealing in
                        Methamphetamine. Given the clarity of the record, the
                        Post-Conviction court applies the judicial-temperance
                        presumption, and concludes that the commingled items of


       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 18 of 24
                        paraphernalia were disregarded by the trial court in
                        deciding that [Long] was guilty.


       Id. at 33-34.


[29]   On appeal, Long argues the post-conviction court applied “the wrong standard,

       the judicial-temperance presumption doctrine, in its decision to deny relief.”

       Appellant’s Br. at 33. Instead, Long contends the correct standard was whether

       he “was denied effective assistance as required by Strickland.” Id. at 34.

       However, viewed in context, the post-conviction court indeed applied the

       correct standard, basing its conclusion on Long’s failure to establish prejudice—

       a conclusion with which we agree.


[30]   The record clearly reflects that the parties stipulated the evidence recovered

       from the hotel room was not at issue in this case. Long’s trial counsel engaged

       in questioning of the State’s witness, Trooper Sego, clearly designed to notify

       the trial court of where each piece of evidence originated and that the evidence

       had been mistakenly commingled. As the post-conviction court noted, it is

       well-established that where, as here, the case is tried before the court, a trial

       judge is presumed to disregard improper evidence in reaching its decision.

       Konopasek v. State, 946 N.E.2d 23, 28 (Ind. 2011). And there is nothing in the

       record indicating that the trial court considered or relied upon the mistakenly

       commingled evidence in reaching its judgment. Therefore, we conclude that

       Long has failed to establish he was prejudiced by his counsel’s failure to

       explicitly object to the evidence on grounds that it was improperly commingled.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 19 of 24
                                           C. Hearsay Evidence
[31]   Next, Long claims he received ineffective assistance of counsel because, despite

       knowledge of Long’s intent to testify that someone else had driven his car on

       the date in question, his trial counsel “failed to make any effort whatsoever to

       summon the witness to trial to testify in person; therefore, Long could not rely

       on Rules 804s [sic] ‘statement against interest’ hearsay exception[.]”

       Appellant’s Br. at 35. The post-conviction court concluded the issue was

       decided on direct appeal and was therefore res judicata. On appeal from the

       denial of his post-conviction petition, Long claims the post-conviction court

       erred “by failing to review this issue under the proper legal standard” because

       he had not raised the issue of ineffective assistance of trial counsel on direct

       appeal. Id. at 37. The State argues the post-conviction court correctly decided

       this issue as res judicata.


[32]           The doctrine of res judicata bars a later suit when an earlier suit
               resulted in a final judgment on the merits, was based on proper
               jurisdiction, and involved the same cause of action and the same
               parties as the later suit. As a general rule, when a reviewing
               court decides an issue on direct appeal, the doctrine of res
               judicata applies, thereby precluding its review in post-conviction
               proceedings. The doctrine of res judicata prevents the repetitious
               litigation of that which is essentially the same dispute. And, a
               petitioner for post-conviction relief cannot escape the effect of
               claim preclusion merely by using different language to phrase an
               issue and define an alleged error. [W]here an issue, although
               differently designated, was previously considered and determined
               upon a criminal defendant’s direct appeal, the State may defend
               against defendant’s post-conviction relief petition on grounds of
               prior adjudication or res judicata.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 20 of 24
       Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006) (citations and quotation

       omitted).


[33]   On direct appeal, we concluded:


               Long testified during his case-in-chief. He asserted that someone
               else drove his car on the day in question. During preliminary
               questioning by the State, Long conceded that his alleged
               knowledge of the purported driver’s identity was based on what
               the purported driver had told him. The State objected to any
               further testimony on the purported driver’s identity, claiming it
               was based on inadmissible hearsay. The court sustained the
               objection. Next, Long submitted an offer to prove, in which he
               provided the purported driver’s name and submitted photographs
               of that person and of him for comparison. The State offered
               three photographs of the purported driver as part of the offer to
               prove. At the close of the offer, the court stated with respect to
               the photographs, “I'm not looking at any of them.”


               Long made no effort to establish that the purported driver was
               unavailable to testify, so Rule 804 did not permit the admission
               of Long’s evidence.


       Long, No. 49A04-1308-CR-392 at *3-4 (citations to transcript omitted).


[34]   We acknowledge that, at least on first glance, this issue does not appear to be

       res judicata because the basis for our decision on direct appeal was that “Long

       made no effort to establish that the purported driver was unavailable to testify,”

       id. at *4, and Long asserts this as the basis for his claim of ineffective assistance

       of trial counsel on post-conviction relief. However, upon further inspection, we

       agree with the post-conviction court’s disposition of this issue.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 21 of 24
[35]   The requirement of reliability is embodied within the statements against interest

       hearsay exception, as reliability is the ultimate justification for this exception.

       Bryant v. State, 794 N.E.2d 1135, 1142-43 (Ind. Ct. App. 2003), trans. denied;

       Ind. Evidence Rule 804(b)(3). To qualify under this hearsay exception, the

       statement against interest must be incriminating on its face. Jervis v. State, 679

       N.E.2d 875, 878 (Ind. 1997). On Long’s direct appeal, after acknowledging

       trial counsel’s failure to establish unavailability, we proceeded to explain:


               Furthermore, Long said the purported driver merely stated that
               he drove the car on the day in question. Long did not testify that
               the person told him he was driving the car at the time the police
               initiated the traffic stop, or that the person told him he fled from
               the police on foot, or that the person told him he was the owner
               of the methamphetamine. Without more, the mere statement
               that the person drove the car at some point on the day in question
               is not incriminating on its face. We also note that the purported
               driver made his statement to Long rather than to a disinterested
               witness, which undermines the statement’s credibility. See Bryant
               v. State, 794 N.E.2d 1135, 1143 (Ind. Ct. App. 2003) (alleged
               confession was not statement against interest where statement
               did not match the circumstances of the crime at issue, was
               uncorroborated, and was made to the defendant), trans. denied.
               The court did not abuse its discretion in excluding Long’s
               evidence on the identity of the purported driver.


       Long, No. 49A04-1308-CR-392 at *4. Therefore, even if trial counsel had

       demonstrated the purported driver was unavailable to testify, Long’s hearsay

       testimony was still inadmissible as a statement against interest under Indiana

       Evidence Rule 804(b)(3). Accordingly, res judicata acts to bar Long’s attempt



       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 22 of 24
       at relitigating that which is essentially the same dispute. Sweeney v. State, 704

       N.E.2d 86, 94 (Ind. 1998), cert. denied, 527 U.S. 1035 (1999).


[36]   Even if the issue is not res judicata, Long has again failed to demonstrate

       prejudice. Two officers testified that they saw Long driving his vehicle and

       Long’s acquaintance, Pedigo, testified that Long had told him that he was

       driving the vehicle, which contained methamphetamine, and that he fled once

       officers approached. The trial court allowed Long to testify that he was out of

       town on the date in question and that he left his vehicle at his girlfriend’s house.

       The hearsay testimony Long sought to admit was simply that he had learned

       that someone else was driving his vehicle. Therefore, even if unavailability had

       been properly established and Long was permitted to present the hearsay

       testimony through the applicable exception, we are unconvinced there was a

       reasonable probability that, but for trial counsel’s alleged error, the result of the

       proceeding would have been different. Garrett, 992 N.E.2d at 719.


                                         D. Cumulative Issues
[37]   Finally, Long argues the cumulative errors of trial and appellate counsel entitle

       him to a new trial. We have determined that all of Long’s claims that he

       received ineffective assistance of trial and appellate counsel are without merit,

       and “[t]rial irregularities which standing alone do not amount to error do not

       gain the stature of reversible error when taken together.” Kubsch v. State, 934

       N.E.2d 1138, 1154 (Ind. 2010). Therefore, as with each individual claim, Long

       is not entitled to relief on his claim of cumulative error.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 23 of 24
                                               Conclusion
[38]   The post-conviction court did not err in concluding Long is not entitled to post-

       conviction relief on his claims that he received ineffective assistance of trial and

       appellate counsel. Accordingly, we affirm.


[39]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2804 | October 30, 2018   Page 24 of 24
