MEMO RANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                          May 29 2019, 9:31 am
regarded as precedent or cited before any
court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
the defense of res judicata, collateral                                              and Tax Court

estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
William R. Neeb                                          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

William R. Neeb,                                         May 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-PC-2058
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Steven R. Nation,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D01-1603-PC-1664



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2058 | May 29, 2019                        Page 1 of 7
                                       Statement of the Case
[1]   William Neeb appeals the post-conviction court’s denial of his petition for post-

      conviction relief. He presents a single issue for our review, namely, whether the

      post-conviction court erred when it summarily dismissed his petition. We

      reverse and remand for further proceedings.


                                 Facts and Procedural History
[2]   On direct appeal, this Court set out the facts and procedural history as follows:


              On July 23, 2014, Detective Elizabeth Hubbs of the Hamilton
              County[-]Boone County Drug Task Force was investigating
              Neeb while working as an undercover officer. Detective Hubbs
              and Alesia, a confidential informant who had arranged a meeting
              with Neeb, traveled to Neeb’s trailer located in Noblesville.
              Detective Hubbs possessed a covert video camera, a digital
              recorder, and a microphone.

              After Neeb and Detective Hubbs disagreed about the location of
              the deal, the trio agreed to meet at a nearby Speedway gas
              station. Detective Hubbs and Neeb began discussing the price for
              3.5 grams of methamphetamine. Neeb stated the price was
              $325.00 and confirmed Detective Hubbs was receiving a “first
              time buyer’s discount[.]” Transcript at 289. Alesia mentioned if
              they were satisfied with the methamphetamine then they would
              want more. Neeb indicated he could get more and that he was
              almost “always on[,]” signifying the pair could contact him at
              any time for more methamphetamine. Id. at 287. Ultimately,
              Detective Hubbs paid Neeb and took possession of the
              methamphetamine.

              Four days later, Detective Hubbs texted Neeb to arrange another
              methamphetamine purchase. Neeb responded and stated he
              could obtain a quarter ounce of methamphetamine. On August
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2058 | May 29, 2019   Page 2 of 7
        4, Detective Hubbs met Neeb at a Dollar General store in
        Noblesville. In exchange for $575.00, Neeb gave Detective
        Hubbs 6.6 grams of methamphetamine. Two days later, Neeb
        texted Detective Hubbs inquiring as to how the most recent batch
        of methamphetamine worked for her. They then arranged a third
        meeting. On August 14, the two met at the same Dollar General
        store. In exchange for $1,100.00, Neeb gave Detective Hubbs
        12.81 grams of methamphetamine. Neeb was arrested several
        days later.

        The State charged Neeb with Count I, Level 4 felony dealing in
        methamphetamine and Count II, Level 6 felony possession of
        methamphetamine for the July 23 transaction; Count III, Level 3
        felony dealing in methamphetamine and Count IV, Level 5
        felony possession of methamphetamine for the August 4
        transaction; and Count V, Level 2 felony dealing in
        methamphetamine and Count VI, Level 4 felony possession of
        methamphetamine for the August 14 transaction.

                                               ***

        At trial, the jury found Neeb guilty on all counts, and the trial
        court entered a judgment of conviction on Counts I, III, and V.
        The trial court sentenced Neeb to thirty years in the Department
        of Correction.


Neeb v. State, No. 29A02-1503-CR-145, 2015 WL 5944451, at *1-2 (Ind. Ct.

App. Oct. 13, 2015), trans. denied. Neeb raised two issues on direct appeal:

whether the State presented sufficient evidence to rebut his entrapment defense

and whether his sentence was inappropriate in light of the nature of the offenses

and his character. We affirmed Neeb’s convictions and sentence. Id. at *5.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2058 | May 29, 2019   Page 3 of 7
[3]   Thereafter, Neeb filed a petition for post-conviction relief, and on June 11,

      2018, he filed an amended petition alleging in relevant part that he was denied

      the effective assistance of trial counsel when his counsel did not depose the

      confidential informant or subpoena her to testify at trial. The State moved for

      summary disposition of Neeb’s petition. The post-conviction court granted that

      motion and summarily denied Neeb’s petition for post-conviction relief. In its

      order, the court stated in relevant part as follows:


              The Court being duly advised now FINDS that Petitioner’s
              Amended Verified Petition For Post-Conviction Relief should be
              and is hereby DISMISSED, in that the issue of entrapment that was
              raised in the Amended Petition was presented at trial and resolved by the
              Court of Appeals. Therefore even if the Petitioner could be able to
              establish that his counsel was ineffective the Petitioner would not
              be able to show that such ineffective assistance was prejudicial.
              The Court of Appeals has established the law of the case and has found
              that there was sufficient evidence for the jury to find that the defendant
              was predisposed to commit the crimes for which the jury found him
              guilty.


      Appellant’s Br. at 20 (emphases added). This appeal ensued.


                                     Discussion and Decision
[4]   Neeb appeals the post-conviction court’s summary disposition of his petition for

      post-conviction relief. As our supreme court has explained:


              An appellate court reviews the grant of a motion for summary
              disposition in post-conviction proceedings on appeal in the same
              way as a motion for summary judgment. Thus summary
              disposition, like summary judgment, is a matter for appellate de


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2058 | May 29, 2019         Page 4 of 7
              novo determination when the determinative issue is a matter of
              law, not fact.


      Norris v. State, 896 N.E.2d 1149, 1151 (Ind. 2008) (citations omitted). In

      summary judgment proceedings, the moving party (here, the State) is the party

      that bears the burden to demonstrate that there is no genuine issue of material

      fact and that it is entitled to judgment as a matter of law. Hughley v. State, 15

      N.E.3d 1000, 1003-04 (Ind. 2014). However, a trial court’s grant of summary

      judgment is clothed with a presumption of validity, and the party who lost in

      the trial court (here, Neeb) has the burden of demonstrating that the grant of

      summary judgment was erroneous. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

      1167, 1173 (Ind. Ct. App. 2012), trans. denied.


[5]   In his petition for post-conviction relief, Neeb alleged that he was denied the

      effective assistance of trial counsel. It is well settled that the issue of the

      effectiveness of counsel is an evidentiary question and that the resolution of

      such an issue revolves around the particular facts of each case. Osmanov v. State,

      40 N.E.3d 904, 909 (Ind. Ct. App. 2015). “‘Consequently, when a petitioner

      alleges ineffective assistance of counsel, and the facts pled raise an issue of

      possible merit, the petition should not be summarily denied.’” Id. (quoting

      Kelly v. State, 952 N.E.2d 297, 300 (Ind. Ct. App. 2011)).


[6]   In its order denying Neeb’s post-conviction petition on summary disposition,

      the post-conviction court found that, because this Court had “resolved” the

      “issue of entrapment,” the “law of the case” doctrine precluded Neeb’s

      ineffective assistance of counsel claim. Appellant’s Br. at 20. The law of the
      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2058 | May 29, 2019      Page 5 of 7
      case doctrine “is a discretionary tool by which appellate courts decline to revisit

      legal issues already determined on appeal in the same case and on substantially

      the same facts.” Clemons v. State, 967 N.E.2d 514, 519 (Ind. Ct. App. 2012),

      trans. denied. To invoke the law of the case doctrine, the matters decided in the

      prior appeal clearly must appear to be the only possible construction of an

      opinion, and questions not conclusively decided in the prior appeal do not

      become the law of the case. Id.


[7]   On direct appeal, we addressed and rejected Neeb’s contention that the State

      presented insufficient evidence to rebut his entrapment defense. However,

      Neeb’s contention in his petition for post-conviction relief that his trial counsel

      was ineffective when his counsel did not call the confidential informant to

      testify at trial “is a separate and distinct inquiry from whether there [wa]s

      sufficient evidence” to rebut his entrapment defense. See Binkley v. State, 993

      N.E.2d 645, 651 (Ind. Ct. App. 2013). In short, contrary to the post-conviction

      court’s assessment, our resolution of the sufficiency of the evidence on

      entrapment did not resolve the issue raised by Neeb in his post-conviction

      petition, and the law of the case doctrine does not preclude his post-conviction

      claim of ineffective assistance of counsel.

[8]   We have previously held that, as a matter of law, a petitioner for post-

      conviction relief raised “an issue of possible merit” to defeat a summary

      disposition where he asserted ineffective assistance of counsel for counsel’s

      failure to depose a material witness. See Allen v. State, 791 N.E.2d 748, 756

      (Ind. Ct. App. 2003), trans. denied. Thus, here, while it may be unlikely that the

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2058 | May 29, 2019   Page 6 of 7
      jury would have found differently had the confidential informant testified as

      Neeb suggests she would have, we cannot say that Neeb has not pleaded facts

      in support of his ineffective assistance of counsel claim that raise an issue of

      possible merit. Osmanov, 40 N.E.3d at 909. The issue raised by Neeb in his

      petition for post-conviction relief is for the trier of fact, and the post-conviction

      court erred when it summarily denied Neeb’s petition. Id. Accordingly, we

      reverse the post-conviction court’s summary denial of Neeb’s petition for post-

      conviction relief.


[9]   Reversed and remanded for further proceedings.


      Baker, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2058 | May 29, 2019   Page 7 of 7
