MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                           FILED
court except for the purpose of establishing                           Feb 26 2020, 9:36 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Amy E. Karozos                                           Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Corinne J. Lightner                                      Lauren A. Jacobsen
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephen C. Rainey,                                       February 26, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-2120
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Robert J. Pigman,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         82D03-1712-PC-6071



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020              Page 1 of 13
[1]   Stephen Rainey appeals the denial of his petition for post-conviction relief,

      arguing that the post-conviction court should have found that he received the

      ineffective assistance of appellate counsel. Finding no error, we affirm.


                                                          Facts
[2]   On July 22, 2014, the State charged Rainey with Level 21 felony dealing in

      methamphetamine and Level 6 felony resisting law enforcement and alleged

      that he was an habitual offender.2 Rainey’s jury trial took place on October 31,

      2016.


[3]   While the jury was deliberating, Rainey’s trial counsel requested a hearing

      regarding a prior conviction. For both Level 3 felony dealing in

      methamphetamine and the lesser-included offense of Level 5 felony possession

      of methamphetamine, a prior conviction for dealing in a controlled substance

      other than marijuana is an “enhancing circumstance” that increases the level of

      felony. Ind. Code § 35-48-1-16.5(1). Therefore, Rainey’s attorney requested a

      hearing so that Rainey could stipulate to the fact that he had a prior conviction

      for Class B felony dealing in methamphetamine.




      1
        Originally, the State charged Rainey with this offense as a Level 2 felony based on an allegation that the
      amount of methamphetamine involved was at least ten grams. Later, the State filed an amended charge,
      alleging that the amount of methamphetamine was between five and ten grams. That amount of the drug
      would render the offense a Level 3 felony, but when an enhancing circumstance applies it becomes a Level 2
      felony. The amended charging information continued to list the underlying felony as a Level 2, but we
      believe that to be a scrivener’s error, as it should have been a Level 3 felony, with a separate enhancing
      circumstance allegation raising it to a Level 2 felony.
      2
          The State later dismissed the resisting law enforcement charge and the habitual offender allegation.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020                   Page 2 of 13
[4]   At that hearing, the following conversation occurred on the record between

      Rainey, his attorney, and the trial court:


              Counsel:         . . . The likelihood of this jury finding you not-guilty
                               of anything is slim to none, you understand that.
                               The fight was whether this is a Level 2 or a Level 4
                               [sic]. [The State] has the obligation to prove this
                               beyond a reasonable doubt to the jury. Well
                               basically all [the prosecutor] has to do is tender a
                               certified docket [showing the prior conviction],
                               which I’ve let you review. The other thing we can
                               do is, we can simply say, yes Judge this is true but
                               Judge will need to know the answer to that before
                               we get there because the jury will have either to stay
                               or be sent home. Do you have an option one way
                               or the other as to—


              Rainey:          (Interrupting) What do you mean?


              Counsel:         But what I want to know is do you want to stipulate
                               that this fact is true? That you have a prior dealing
                               conviction or do you want [the prosecutor] to have
                               to prove that in front of this jury?


              Rainey:          I don’t understand?


              Counsel:         Okay.


              Rainey:          (Inaudible.)


              Counsel:         Well what happens, the jury is going to return a
                               verdict. And it’s either going to be one way or the
                               other. It’s either going to be a Dealing of
                               Methamphetamine as a Level 3 or it’s going to be
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020   Page 3 of 13
                         Possession as a Level 5. We then have the second
                         phase of the trial, that is the enhancing
                         circumstance, and we walked through that this
                         morning. It turns into a Level 4, Possession, if you
                         have an enhancing circumstance.


        Rainey:          Mm-hmm (affirmative).


        Counsel:         It turns into a Level 2 Dealing, if you have an
                         enhancing circumstance. The enhancing
                         circumstance that applies to you is that you have a
                         prior dealing charge that resulted in a B Felony
                         conviction. So [the prosecutor] is either going to
                         have to present this before the jury and we’re going
                         to have to then send them out, and do new verdict
                         forms saying does he have an enhancing
                         circumstance or not; or we can say, Judge, we agree
                         that this is true.


        Rainey:          What is better?


        Counsel:         I’m not sure I can give a recommendation on this
                         one.


                                                 ***


        Counsel:         . . . I—it’s truly a personal choice. I can tell you
                         that I would not put this before the jury. If you
                         don’t want to admit this I would let Judge Pigman
                         make the determination. I never think this is
                         needed in front of a jury. I mean the quest—the
                         question is that I see is, is this true? I think you and
                         I’ve talked about it enough that we—that we know
                         so.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020   Page 4 of 13
        Rainey:          (Inaudible) how—how far can they go back
                         (inaudible)?


        Counsel:         How? They can go back forever on enhancing
                         circumstances. There is no time limit.


        Rainey:          That was my first charge ever though.


        Counsel:         Yep, it was. The question is did it result in a
                         dealing conviction?


        Rainey:          Yeah (affirmative).


                                                 ***


        Counsel:         (Inaudible).


        Rainey:          Yes.


        Counsel:         Okay. Judge, I believe we’re willing to stipulate to
                         the—


        Court:           (Interrupting). Okay. You admit you have that
                         conviction, is that right Mr. Rainey?


        Rainey:          Yes.


                                                 ***


        Counsel:         It resulted in what type of conviction?


        Rainey:          A, B. (Defendant indicates B felony).
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020   Page 5 of 13
              Counsel:          Tell the Judge what your sentence was.


              Rainey:           Six, do three years. First time I ever went to prison.


              Court:            Okay. All right we will show the defendant admits
                                that. So there won’t be a need for an enhancing
                                circumstance trial.


      Trial Tr. Vol. I p. 90-94.


[5]   Following deliberations, the jury found Rainey guilty of the lesser-included

      offense of Level 5 felony possession of methamphetamine. The trial court

      entered the conviction as a Level 4 felony based on the enhancing circumstance

      of Rainey’s prior conviction and sentenced him to a ten-year term. Rainey filed

      a direct appeal, arguing only that the sentence was inappropriate in light of the

      nature of the offense and his character; this Court affirmed. Rainey v. State, No.

      82A01-1612-CR-2857 (Ind. Ct. App. May 31, 2017).


[6]   On December 4, 2017, Rainey filed a pro se petition for post-conviction relief;

      his petition was later amended by counsel on March 22, 2019. The amended

      petition alleged that Rainey had received the ineffective assistance of appellate

      counsel because in the direct appeal, counsel failed to raise the lack of a

      personal, knowing, and voluntary waiver of a jury trial on Rainey’s prior

      conviction.3




      3
       Rainey also argued that appellate counsel should have sought a reversal because Rainey’s stipulation to his
      prior conviction amounted to a guilty plea without the required advisements. He has abandoned that

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020                Page 6 of 13
[7]   The post-conviction court held an evidentiary hearing on Rainey’s petition on

      May 10, 2019. Appellate counsel testified at that hearing, explaining that


               . . . I do remember talking to my law partner about it in some
               detail, . . . and sort of batting back and forth the idea of—of . . .
               raising that issue and I think at the end of the day I didn’t feel
               like it was the appropriate issue . . . for appeal given that it was
               either a stipulation or a guilty plea. If it was a stipulation I didn’t
               think that he was entitled to a waiver and if it was a guilty
               plea . . . . I didn’t think . . . direct appeal was the appropriate
               place to bring it.


      PCR Tr. Vol. II p. 10. Counsel testified that she was “never a fan” of the

      sentencing issue she raised in the direct appeal and stated that she had no

      strategic reason for not making an argument as to Rainey’s waiver of a jury trial

      on his prior conviction. Id. On August 26, 2019, the post-conviction court

      denied Rainey’s petition for post-conviction relief, adopting wholesale the

      State’s proposed findings of fact and conclusions of law. Rainey now appeals.


                                      Discussion and Decision
[8]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:


               “The petitioner in a post-conviction proceeding bears the burden
               of establishing grounds for relief by a preponderance of the



      argument on appeal and “agrees with the post-conviction court’s determination that his elevated offense was
      adjudicated at a bench trial.” Appellant’s Br. p. 14; see also Garrett v. State, 737 N.E.2d 388, 392 (Ind. 2000)
      (holding that stipulation regarding prior offenses did not amount to a guilty plea and was instead a bench
      trial).

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020                   Page 7 of 13
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. To prevail on appeal from the denial of post-
              conviction relief, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post-Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[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.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


[9]   Rainey’s primary argument on appeal is that the post-conviction court

      erroneously determined that he did not receive the ineffective assistance of

      appellate counsel. To establish ineffective assistance of appellate counsel, the

      petitioner must show that (1) appellate counsel was deficient in his or her

      performance, and (2) the deficiency resulted in prejudice. Id. at 269. Failure to

      satisfy either prong will cause the claim to fail. Henley v. State, 881 N.E.2d 639,

      644 (Ind. 2008). To satisfy the first prong, the defendant must show that

      counsel’s representation fell below an objective standard of reasonableness,

      committing errors so egregious that the defendant did not have the counsel

      guaranteed by the Constitution. Hollowell, 19 N.E.3d at 269. To satisfy the



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020   Page 8 of 13
       second prong, the defendant must show a reasonable probability that, but for

       counsel’s errors, the result of the proceeding would have been different. Id.


[10]   Ineffective assistance of appellate counsel claims fall into three categories:

       denial of access to an appeal; waiver of issues; and failure to present issues well.

       Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997). Rainey’s claim falls into the

       second category: waiver. In evaluating claims regarding waiver of issues on

       direct appeal, we consider (1) whether the unraised issues are significant and

       obvious from the face of the record; and (2) whether the unraised issues are

       clearly stronger than the raised issues. Id. at 194.


[11]   Rainey argues that his appellate counsel was ineffective for failing to argue that

       Rainey did not make a personal, knowing, and voluntary waiver of his right to

       a jury trial on the enhancing circumstance of his prior Class B felony

       conviction. As noted above, possession of methamphetamine is a Level 5

       felony if the amount of the drug involved is between five and ten grams, but the

       offense becomes a Level 4 felony “if an enhancing circumstance applies.” I.C.

       § 35-48-4-6.1(c), -6.1(d). If the defendant has a prior conviction for dealing in a

       controlled substance other than marijuana, an enhancing circumstance applies.

       I.C. § 35-48-1-16.5(1).


[12]   As with any element of a criminal charge, the State has the obligation to prove

       the enhancing circumstance beyond a reasonable doubt, and as with any felony,

       the defendant has a constitutional right to a jury trial. See Jones v. State, 810

       N.E.2d 777, 779 (Ind. Ct. App. 2004) (noting that a person charged with a


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020   Page 9 of 13
       felony has an automatic right to a jury trial). The defendant may, of course,

       waive his right to a jury trial, but it is well established that the waiver must be

       knowing, voluntary, and made by the defendant—not by his attorney. Kellems

       v. State, 849 N.E.2d 1110, 1112-13 (Ind. 2006)


[13]   In Garcia v. State, the defendant was found guilty by a jury of Class A

       misdemeanor operating a motor vehicle while intoxicated. 916 N.E.2d 219,

       220 (Ind. Ct. App. 2009). The State also alleged that he had a prior conviction

       of driving while intoxicated, which would enhance the conviction to a Class D

       felony if proved beyond a reasonable doubt. Id. At a hearing following the jury

       trial, the trial court explained to Garcia what his options were, including

       stipulating to the prior conviction or proceeding to a jury trial on that

       allegation. Id. at 222-23. During the conversation, Garcia asked many

       questions but did not explicitly waive his right to a jury trial; instead, his

       attorney waived on his behalf. Id. at 223.


[14]   Garcia appealed, and this Court found that because “Garcia did not make a

       ‘personal communication’ to the court that he wished to relinquish his right to

       have a jury determine whether the offense should be elevated to a Class D

       felony,” the enhanced conviction had to be reversed. Id. at 223; see also Kellems,

       849 N.E.2d at 1112-13 (holding that a knowing, voluntary, and intelligent

       waiver of the right to a jury trial requires assent to a bench trial by defendant

       personally, reflected directly and explicitly in the record). On remand, the State

       had the option of retrying the enhancing element of the conviction or



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020   Page 10 of 13
       dismissing that element and allowing the Class A misdemeanor to stand for

       resentencing. Garcia, 916 N.E.2d at 220.


[15]   In the case before us, as in Garcia, Rainey spent most of the hearing regarding

       his prior conviction asking questions and showing that he did not have a firm

       understanding of the proceeding or his options. At no point was it made

       explicitly clear to him that by stipulating to his prior conviction, he was waiving

       his right to a jury trial on that issue. And at no point did he personally, directly,

       and explicitly agree to waive a jury trial. Pursuant to Garcia and Kellems,

       therefore, the bare bones of the hearing and his attorney consenting on his

       behalf did not suffice to protect his constitutional rights.


[16]   That said, we must consider the doctrine of invited error. That doctrine, which

       is based on the legal principle of estoppel, forbids a party from taking advantage

       of an error that he commits, invites, or which is the natural consequence of his

       own neglect or misconduct. Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018).

       The doctrine may apply when the failure to object accompanies the party’s

       affirmative requests of the trial court. Id. Our Supreme Court has noted that

       over time, “our invited-error doctrine expanded to foreclose even constitutional

       claims.” Batchelor v. State, 119 N.E.3d 550, 557 (Ind. 2019); see also Durden, 99

       N.E.3d at 655 (finding “no reason to exempt structural errors from the invited-

       error doctrine” despite prejudicial impact of juror removal); Brewington v. State,

       7 N.E.3d 946, 977 (Ind. 2014) (observing that “even constitutional errors may

       be invited”).



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020   Page 11 of 13
[17]   In Bunting v. State, the defendant was convicted by a jury of Class C

       misdemeanor operating a vehicle while intoxicated. 854 N.E.2d 921, 923 (Ind.

       Ct. App. 2006). Following the conviction, Bunting’s attorney advised the trial

       court that Bunting and the State had stipulated to the fact that Bunting had a

       prior conviction for operating a vehicle while intoxicated within the previous

       five years, the jury was dismissed without objection, and the trial court entered

       a judgment of conviction for Class D felony driving while intoxicated with a

       prior conviction. Bunting appealed, arguing in part that he had been denied his

       right to a jury trial on his prior conviction. This Court disagreed, noting that

       Bunting had waived his right to a jury trial and that “if the jury dismissal did

       not comport with Bunting’s understanding of the effect of the stipulation, he

       nevertheless failed to object to the dismissal of the jury. A party may not sit

       idly by, permit the court to act in a claimed erroneous manner, and

       subsequently attempt to take advantage of the alleged error.” Id. at 924.4


[18]   In this case, Rainey’s attorney requested the hearing and suggested that Rainey

       intended to stipulate to his prior conviction. During the discussion, Rainey

       agreed that he had a prior conviction and did not object to the dismissal of the

       jury. Under these circumstances, we think it more likely than not that had the




       4
        The Bunting Court also noted that it was without dispute that Bunting did, in fact, have a prior conviction.
       Had the issue been before the jury, the jury would not have been “empowered to blatantly disregard the law
       or the facts before it,” meaning that the result would had to have been the same. Id. at 924.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020                Page 12 of 13
       issue been raised on direct appeal, this Court would have found that the error

       was invited and therefore waived.


[19]   We also note that there is no real dispute that Rainey does, in fact, have a prior

       conviction for Class B felony dealing in methamphetamine. So even if this

       Court had not found invited error, it would have determined that a reversal and

       remand would have been an unwise use of judicial resources, given that the jury

       would not have been “empowered to blatantly disregard the law or the facts

       before it,” meaning that everyone would have ended up back in the same place

       following a retrial. Bunting, 854 N.E.2d at 924.


[20]   Under these circumstances, we can only find that Rainey has not established

       that there is a reasonable probability that, but for appellate counsel’s failure to

       raise the issue on direct appeal, the result of the proceeding would have been

       different. Therefore, we find that the post-conviction court did not err by

       denying the petition for post-conviction relief.


[21]   The judgment of the post-conviction court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2120 | February 26, 2020   Page 13 of 13
