Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

CHAD A. JEFFRIES                                  GREGORY F. ZOELLER
Pendleton, Indiana                                Attorney General of Indiana

                                                  JODI KATHRYN STEIN
                                                  Deputy Attorney General

                                                                                FILED
                                                  Indianapolis, Indiana

                                                                            Jul 27 2012, 9:33 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court




CHAD A. JEFFRIES,                                 )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )     No. 73A04-1110-PC-574
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                    APPEAL FROM THE SHELBY SUPERIOR COURT
                      The Honorable David N. Riggins, Special Judge
                             Cause No. 73D01-0507-FA-10




                                        July 27, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issues

       Chad Jeffries was convicted of dealing in methamphetamine, a Class A felony,

and possession of a controlled substance, a Class C felony. This court affirmed his

convictions on direct appeal and a post-conviction court denied his petition for post-

conviction relief. He raises three issues for our review, which we restate as whether he

received ineffective assistance of trial, appellate, or post-conviction counsel. Concluding

Jeffries has not met his burden of establishing ineffective assistance of counsel at any

stage of his prior proceedings, we affirm.

                                Facts and Procedural History

       Jeffries was found guilty by a jury of dealing in methamphetamine, a Class A

felony, and possession of a controlled substance, a Class C felony, in 2005. He appealed

to this court, and we affirmed his convictions. See Jeffries v. State, 865 N.E.2d 1082

(Ind. Ct. App. 2007) (Table). Jeffries initially filed a pro se petition for post-conviction

relief, but his petition was amended by counsel. After a hearing, the post-conviction

court issued an order denying Jeffries’s petition for relief.

       The facts of Jeffries’s underlying arrest were stated in his direct appeal as follows:

              On July 14, 2005, Officer Mike Polston of the Shelbyville Police
       Department received an anonymous tip that Jeffries was dealing
       methamphetamine. Prior to that, Officer Polston had received information
       from two other confidential informants that Jeffries dealt in
       methamphetamine.        The information from those two confidential
       informants led to the conviction of two persons, but the State neither
       arrested nor charged Jeffries.
              Based on the July 14 tip, Officer Polston searched for Jeffries’
       vehicle, which he knew to be a black Grand Marquis. Officer Polston
       located such a vehicle in the parking lot of an apartment complex in an area
       known to Officer Polston for methamphetamine dealing. After locating the
       vehicle, Officer Polston requested a K-9 unit to perform a “sniff search.”
                                              2
       The K-9 unit gave a positive indication of the presence of narcotics within
       the vehicle on two separate sweeps. A tenant at the apartment complex
       then informed Officer Polston, Officer Charles Curry, who was in charge of
       the K-9 unit, and Indiana State Trooper Marcus Brown in which apartment
       that car's owner could be found.
               The officers approached the designated apartment and knocked on
       the door facing the parking lot. Jennifer Rush answered the door, and the
       officers asked for Jeffries. Rush told the officers that Jeffries was asleep on
       the couch; from their vantage point the officers could see him lying on the
       couch. Rush went over to Jeffries and yelled loudly at him a number of
       times, but Jeffries did not respond. The officers then asked Rush for
       permission to enter her apartment to speak with Jeffries or to try to wake
       him, and Rush consented.
               Once the officers entered Rush’s apartment, Jeffries stood up and
       walked towards them. Jeffries appeared pale and disoriented. He was
       sweating profusely, and he gave the officers a blank stare with bloodshot
       eyes and dilated pupils. Both Officer Curry and Trooper Brown
       immediately suspected Jeffries to be under the influence of
       methamphetamine. Based on his past experiences in similar circumstances,
       Trooper Brown specifically associated Jeffries' stare as a
       methamphetamine-induced “fight or flight stare.”
               As Jeffries approached the officers, he placed both hands in the
       pockets of his pants. The officers asked Jeffries to remove his hands from
       his pockets several times, but Jeffries did not respond. Jeffries then tried to
       walk between the officers, at which time Trooper Brown and Officer Curry
       grabbed Jeffries’ arms and pulled his hands from his pockets. Then,
       without first performing a pat-down of Jeffries’ outer clothes, Officer Curry
       reached into Jeffries’ pockets and removed four plastic bags containing
       methamphetamine and one plastic bag containing nine Xanax pills. The
       total weight of the methamphetamine was 24.32 grams. The officers then
       obtained a warrant to search the apartment and discovered paraphernalia
       relating to the manufacture of methamphetamine. Rush’s apartment was
       280 feet from Wiley Park, a city-owned park.
               The State charged Jeffries with possession of methamphetamine, as
       a Class A felony; dealing in methamphetamine, as a Class A felony;
       possession of a controlled substance, as a Class C felony; and possession of
       paraphernalia, as a Class A misdemeanor. Jeffries filed a motion to
       suppress the evidence of the methamphetamine and Xanax. The trial court
       held a hearing on the motion and denied it, and Jeffries objected to the
       admission of the evidence during the trial. After a trial, the jury convicted
       Jeffries of the felony charges, and the trial court merged his Class A felony
       convictions. The court then sentenced him to a total term of forty years’
       imprisonment.

Id. at *1-2 (citations and footnotes omitted).
                                                 3
       In its order denying Jeffries’s petition for post-conviction relief, the post-

conviction court stated the various claims Jeffries raised in his petition, followed by the

post-conviction court’s denial of each claim. Jeffries now appeals, pro se. Additional

facts will be supplied as appropriate.

                                 Discussion and Decision

                                  I. Standard of Review

              When evaluating a claim of ineffective assistance of counsel, we
       apply the two-part test articulated in Strickland v. Washington, 466 U.S.
       668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must
       show that counsel’s performance was deficient. This requires a showing
       that counsel’s representation fell below an objective standard of
       reasonableness and that the errors were so serious that they resulted in a
       denial of the right to counsel guaranteed to the defendant by the Sixth and
       Fourteenth Amendments. Second, the defendant must show that the
       deficient performance resulted in prejudice. To establish prejudice, a
       defendant must show that there is a reasonable probability that but for
       counsel’s unprofessional errors, the result of the proceeding would have
       been different. A reasonable probability is a probability sufficient to
       undermine confidence in the outcome.

Perry v. State, 904 N.E.2d 302, 308 (Ind. Ct. App. 2009) (citations omitted), trans.

denied. This standard applies when evaluating claims of ineffective assistance of trial

and/or appellate counsel. Stephenson v. State, 864 N.E.2d 1022, 1046 (Ind. 2007), cert.

denied, 552 U.S. 1313 (2008).

       Unlike claims regarding ineffective trial and appellate counsel, however, we apply

a lesser standard to claims of ineffective post-conviction counsel. The right to counsel in

post-conviction proceedings is not guaranteed by the Sixth Amendment and post-

conviction proceedings are not criminal proceedings. Taylor v. State, 882 N.E.2d 777,

783 (Ind. Ct. App. 2008) (quoting Baum v. State, 533 N.E.2d 1200, 1201 (Ind. 1989)).

                                            4
Therefore, “[w]e adopt the standard that if counsel in fact appeared and represented the

petitioner in a procedurally fair setting which resulted in a judgment of the court, it is not

necessary to judge his performance by the rigorous standard set forth in Strickland.” Id.

                             II. Ineffective Assistance of Trial Counsel1

        Jeffries argues his trial counsel’s performance was deficient in two respects. First,

he contends his counsel failed to challenge the credibility of the anonymous tip given to

police officers which led to Jeffries’s arrest. Second, he argues his counsel should have

objected during the motion to suppress evidence hearing to Officer Polston’s testimony

that Jeffries was a known drug dealer based on Indiana Rule of Evidence 404(b). The

first contention, however, has already been raised during Jeffries’s direct appeal. Jeffries

argued police officers needed more than an anonymous tip to have the requisite

reasonable suspicion prior to investigating Jeffries. We concluded that “[t]he officers did

not proceed directly from the anonymous tip to seizing and searching Jeffries. Rather,

after receiving the tip, Officer Polston independently investigated Jeffries’ car with a K-9

unit. . . . [T]he K-9 unit twice indicated that Jeffries’ car contained illegal substances.

Thus, the officers were authorized to stop and briefly detain Jeffries for investigative

purposes.” Jeffries, 865 N.E.2d at *3.

        As the State points out, “[r]es judicata mandates that when an appellate court

decides a legal issue, both the trial court and the court on appeal are bound by that

determination in any subsequent appeal involving the same case and relatively similar

facts.” Saunders v. State, 794 N.E.2d 523, 527 (Ind. Ct. App. 2003) (citation omitted).


        1
          Two different attorneys represented Jeffries in the trial court proceeding. Because we review their
performance collectively when assessing his claim for ineffective assistance of counsel, we will likewise refer to
them collectively.
                                                        5
Jeffries does not contend new facts have been discovered. Thus, we cannot conclude the

outcome of Jeffries’s trial would have been any different even if his counsel had

challenged the officers’ use of an anonymous tip because we have previously decided the

officers’ actions were proper.2

         Jeffries next contends that his trial counsel should have objected to Officer

Polston’s testimony that he had previously been told Jeffries was a drug dealer based

upon Indiana Rule of Evidence 404(b), which prohibits “[e]vidence of other crimes,

wrongs, or acts . . . to prove the character of a person in order to show action in

conformity therewith.” However, the testimony at issue was given during Jeffries’s

motion to suppress evidence hearing.                     Rather than attempting to show action in

conformity therewith, the State’s questioning of Officer Polston was attempting to

establish that the police officers’ reason to believe Jeffries was involved in criminal

activity arose from more than just the anonymous tip. The State asked, “[h]ave you heard

[that Jeffries is a drug dealer] from individuals who have proven credibility?” and “the

anonymous tip seemed to have been previously somewhat corroborated by the

information you’d received from . . . from informants with proven credibility, is that

right?”      Transcript at 111-12 (ellipses in original).                  Thus, Jeffries’s trial counsel’s

performance was not inadequate for failing to object based upon Rule 404(b) because

such evidence is not prohibited by 404(b).

         Further, even if Jeffries’s trial counsel’s performance was inadequate, we cannot

say that but for such error the result of Jeffries’s trial would have been any different. The

         2
           Jeffries argues in his reply brief that because the State did not raise res judicata in the post-conviction
court it has waived this defense. However, the claim at issue – that Jeffries’s trial counsel was ineffective by not
challenging the police officers’ reliance on the anonymous tip – was not raised by Jeffries in the post-conviction
proceeding. Therefore, the State was not required to raise res judicata to preserve it as a defense for this appeal.
                                                          6
testimony at issue was given during the motion to suppress evidence hearing before the

trial judge. The jury was not present. Thus, if the challenged testimony could have had

any improper impact, it would have been on the trial judge’s decision concerning

Jeffries’s motion to suppress evidence, not the jury’s verdict as to guilt.

       In addition to the anonymous tip, which Jeffries argues is insufficient for police

officers to suspect him of criminal activity, and the prior tips that Jeffries was a drug

dealer, which Jeffries contends were inadmissible, Officer Polston’s belief that Jeffries

was involved in criminal activity was also supported by his use of a K-9 unit, which

twice identified Jeffries’s car as positively containing contraband. Even without evidence

of prior tips given to Officer Polston, which Jeffries challenges, the evidence supports the

trial court’s denial of Jeffries’s motion to suppress evidence.

       We cannot conclude the result of Jeffries’s trial would have differed had Jeffries’s

counsel objected to Officer Polston’s testimony that he received prior tips Jeffries was a

drug dealer.

                     III. Ineffective Assistance of Appellate Counsel

       Jeffries argues his appellate counsel’s performance was deficient in three respects:

1) failing to argue the trial court erred by denying his motion to suppress evidence

because the police violated Article I, section 11 of the Indiana Constitution when

searching Jeffries’s person; 2) failing to argue Officer Polston’s testimony was barred by

Indiana Rule of Evidence 404(b); and 3) failing to challenge the police officers’ use of

the anonymous tip. The State contends Jeffries’s arguments are waived because they

were not raised in his petition for post-conviction relief. In his amended petition for post-

conviction relief, Jeffries argued:
                                              7
         7. Assistance of Appellate Counsel was ineffective because they failed to
         file certiorari with the Indiana Supreme Court.
         8. Assistance of Appellate Counsel was ineffective because they failed to
         list all applicable grounds for appeal.

Appellant’s Appendix at 46.

         The State is correct that issues not raised in a petition for post-conviction relief

cannot be raised for the first time on appeal of the post-conviction court’s decision.

Emerson v. State, 812 N.E.2d 1090, 1098-99 (Ind. Ct. App. 2004). Jeffries did raise the

issue that his appellate counsel’s performance was generally defective for failing to list

all applicable grounds for appeal. However, we conclude this generic statement in his

petition is not the same as raising the issues he now raises on appeal, and thus the issues

now raised are waived.3

                                       IV. Post-Conviction Counsel

         Jeffries also argues his post-conviction counsel performed deficiently, thereby

denying him a procedurally fair post-conviction setting. Specifically, Jeffries contends

his post-conviction counsel erred by failing to submit the trial court record in support of

the issues he raised in his petition for post-conviction relief.                         In its order denying

Jeffries’s petition for post-conviction relief, the post-conviction court noted, “[t]he

defendant never did provide the trial transcript to this court. This court has made its’

[sic] ruling based upon the depositions filed, and the filings and briefs of the parties, and

by listening to the record of the testimony of attorney James Lisher from the December

29, 2010 hearing[.]” Appellant’s App. at 21.



         3
          Jeffries likewise argues the State has waived its claim of waiver because the State did not assert waiver in
the post-conviction proceeding. However, similar to the State’s res judicata defense, the State was not required to
assert waiver of these issues because they were not sufficiently raised by Jeffries in the post-conviction proceeding.
                                                          8
       As stated above, however, our review of post-conviction counsel’s performance

includes a lower threshold than for trial or appellate counsel. As long as a petitioner’s

counsel in fact appeared and represented the petitioner in a procedurally fair setting

which resulted in a judgment of the court, we will not reverse the post-conviction court’s

decision. Taylor, 882 N.E.2d at 783. Here, Jeffries’s counsel did in fact appear and

represent Jeffries. He filed an amended petition on Jeffries’s behalf and represented him

during the post-conviction court’s hearing. Jeffries does not point to, nor do we find, any

reason that the post-conviction setting was not procedurally fair, and his petition resulted

in a judgment of the court.

       Further, we point out that the trial court transcript arguably was not necessary to

support Jeffries’s post-conviction contentions. His claims concerning the trial court

proceeding included: 1) trial counsel’s assistance was ineffective because of a conflict of

interest; 2) trial counsel failed to seek a continuance and Jeffries was thus tried in

absentia; 3) trial counsel filed his motion to suppress evidence on the day of trial and

failed to reserve a right to interlocutory appeal; 4) the trial court failed to adequately

instruct the jury regarding witness testimony of prior bad acts; 5) trial counsel failed to

file a motion in limine concerning evidence of prior bad acts; and 6) Jeffries’s second

trial counsel was appointed less than one week prior to trial and never met with Jeffries.

       The first three issues did not require a review of the trial transcript for their

resolution. As to the fourth, the post-conviction court concluded Jeffries waived the issue

by not raising it in his direct appeal. The last two issues also do not require a review of

the trial transcript. Thus, even if we were to review Jeffries’s post-conviction counsel’s

performance using the Strickland standard that applies to trial and appellate counsel, we
                                             9
would not find ineffective assistance of counsel because the trial transcript was not

necessary to support Jeffries’s petition and it cannot be said that there is a reasonable

probability that the outcome of Jeffries’s post-conviction proceeding would have been

any different.

                                        Conclusion

       Even if Jeffries’s trial and/or appellate counsel performed deficiently as he alleges,

in neither case is there a reasonable probability that the outcome of Jeffries’s proceeding

would have been any different if the deficient performance was cured. We therefore

conclude he did not receive ineffective assistance of trial or appellate counsel. In his

post-conviction proceeding, Jeffries was in fact represented by counsel in a procedurally

fair setting that resulted in a judgment of the court, and we therefore affirm the post-

conviction court.

       Affirmed.

BAILEY, J., and MATHIAS, J., concur.




                                             10
