MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                   Sep 20 2019, 9:06 am

court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
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estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Stacy Y. Hart                                            Curtis T. Hill, Jr.
Carlisle, Indiana                                        Attorney General of Indiana

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Stacy Hart,                                              September 20, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-2378
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         82C01-1605-PC-2580



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019                  Page 1 of 13
                                               Case Summary


[1]   Stacy Hart appeals the denial of his petition for post-conviction relief, claiming

      that the post-conviction court erred in ordering the matter to proceed by

      affidavit in lieu of an evidentiary hearing. Hart also claims that the post-

      conviction court erred in concluding that neither trial counsel nor appellate

      counsel was ineffective.


[2]   We affirm.


                                       Facts & Procedural History


[3]   The facts, as reported in Hart’s direct appeal, Hart v. State, No. 82A01-0506-CR-

      236 (Ind. Ct. App. April 17, 2006), are as follows: On January 26, 2005, at

      approximately 4:00 p.m., Evansville police officers responded to a call at an

      apartment building at 1109 Covert Street reporting that Troy Duerson was

      causing a disturbance. The apartment building was in close proximity to Akin

      Park. There were outstanding arrest warrants for Duerson, who was described

      as a black male, about 5’5” tall.


[4]   Around 5:30 p.m., two of the officers noticed two black males matching

      Duerson’s description in front of the apartment building. One of them, later

      identified as Hart, turned and looked to the marked police car before walking

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019   Page 2 of 13
      quickly away. Officer Allen Gansman, who was driving the police car, cut

      across a grassy area to the apartment building’s parking lot. By the time the

      officers had exited the patrol car, Hart was already running. The officers

      identified themselves as police and commanded Hart to stop. The officers

      ultimately found Hart lying down in a vehicle that was parked behind a nearby

      residence.


[5]   Hart was arrested for resisting law enforcement and transported to the county

      jail. During the booking process, Officer Gansman found four pills in a plastic

      baggie in Hart’s pants pocket. The pills were later identified as clonazepam, a

      Schedule IV controlled substance.


[6]   Hart was charged with possession of a controlled substance within 1000 feet of

      a public park, a class C felony, and resisting law enforcement, a class A

      misdemeanor. During Hart’s jury trial that commenced in April 2005, the State

      presented the testimony of Evansville’s civil engineer, who had created a map

      depicting a boundary of a 1000-foot radius around Akin Park. It was

      determined that the apartment building where Hart was initially spotted was

      less than 1000 feet from the park.


[7]   After the State presented its case-in-chief, Hart’s counsel requested the trial

      court to “remove from the jury’s consideration all evidence of the pills,”

      arguing that the police lacked probable cause to arrest or chase Hart, thus

      constituting a violation of the Fourth Amendment and Article 1, Section 11 of




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019   Page 3 of 13
       the Indiana Constitution. Trial Transcript at 118. The trial court denied the

       request.


[8]    Hart testified on his own behalf, claiming that he “found” the pills in the

       backseat of the police car. Trial Transcript at128. Hart claimed that while his

       hands were handcuffed behind his back, he put the pills in his front pocket

       because he intended to sell them while he was in jail. Throughout the course of

       the trial, Hart maintained that he never possessed the pills until he discovered

       them in the police cruiser.


[9]    Following the presentation of evidence, the jury was instructed, inter alia, that it

       was to give the benefit of the doubt to the defendant when considering evidence

       The jury was also instructed, in both the preliminary and final instructions, that

       possession of a controlled substance was a Class C felony if the controlled

       substance was within 1000 feet of a public park. The trial court went on to

       instruct the jury on the lesser-included offense of possession as a class D felony

       and informed it that the only difference between the two offenses was proximity

       to the park. Supplemental Appendix Vol. II at 15-17. Another final instruction

       informed the jurors that if the evidence was susceptible of two reasonable

       interpretations, they were to adopt that which supported Hart’s innocence, and

       to reject the interpretation that pointed to guilt. Hart was found guilty on both

       offenses as charged and was subsequently sentenced.


[10]   On May 12, 2016, Hart filed his initial petition for post-conviction relief, but

       made no allegations regarding a claim for relief. Thereafter, on January 10,


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019   Page 4 of 13
       2018, Hart amended his petition, alleging that his trial counsel was ineffective

       for not raising a defense under Ind. Code § 35-48-4-16(b), i.e., that his

       possession of the drugs near the park did not fall within 1000 feet of the

       restrictive area. Hart also maintained that he received ineffective assistance of

       appellate counsel for failing to properly challenge the sufficiency of the evidence

       on the possession charge and for not raising trial counsel’s failure to tender a

       “reasonable hypothesis of innocence” instruction. PCR Appendix Vol. II at 20.


[11]   Thereafter, Hart filed a notice with the post-conviction court that he intended to

       proceed pro se, and the State subsequently filed a motion requesting to proceed

       by affidavit. The post-conviction court granted the State’s motion that same

       day. Hart filed several requests for an evidentiary hearing or for the post-

       conviction court to reconsider its denial of Hart’s previous requests for the

       issuance of subpoenas to various witnesses. The post-conviction denied those

       requests and found that Hart failed to submit any affidavits in support of his

       petition within the ordered deadline. Hart also did not make any claim that he

       sought to secure affidavits, and he did not contend that he was unable to secure

       such affidavits.


[12]   On October 29, 2018, the post-conviction court denied Hart’s request for relief

       after considering only the trial record. The post-conviction court’s findings of

       fact and conclusions of law provided in relevant part that


               13. Petitioner claims that the trial counsel was ineffective for
               failing to raise what Petitioner calls a “statutory defense” under
               Ind. Code 35-48-4-16(b).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019   Page 5 of 13
        14. At the time of Petitioner’s offense date, Indiana Code 35-48-
        4-16(b), provided . . . that it was a defense to the possession of a
        controlled substance in or within 1,000 feet of a public park that
        the person was “briefly” in, or within 1,000 feet of the public
        park, and that ‘no person under eighteen . . . years of age at least
        three . . . years junior to the person was in . . . or within one
        thousand feet of the . . . public park.”


                                                 ...


        16. Petitioner has failed to present any evidence by way of
        affidavit of other means to show that his trial counsel should
        have made an argument under Indiana Code 35-48-4-16, or that
        counsel’s failure to make such an argument was ineffective
        assistance of counsel.


                                                 ...


        23. Appellate counsel did make a sufficiency of the evidence
        [argument] as to Count 1 on direct appeal, which argument was
        rejected by the Indiana Court of Appeals.


        24. As to Petitioner’s allegation that appellate counsel should
        have challenged Petitioner’s tendered jury instruction on
        reasonable hypothesis of innocence, . . . the court did cover the
        reasonable hypothesis of innocence and the State’s burden of
        proof in Final Instructions B and C.


Supplemental Appendix Vol. II at 43, 51. Hart now appeals.


                                   Discussion and Decision


                                    I. Standard of Review
Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019   Page 6 of 13
[13]   Defendants who have exhausted the direct appeal process may challenge the

       correctness of their convictions and sentences by filing a post-conviction

       petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Post-conviction

       proceedings are civil proceedings, and a defendant must establish his claims by

       a preponderance of the evidence. Hampton v. State, 961 N.E2d 480, 491 (Ind.

       2012). Because the defendant is now appealing from a negative judgment, to

       the extent his appeal turns on factual issues, he must convince us that the

       evidence as a whole leads unerringly and unmistakably to a decision opposite

       that reached by the post-conviction court. Stevens, 770 N.E.2d at 745.


                                   II. Matter to Proceed by Affidavit


[14]   Hart claims that the post-conviction court erred in permitting the matter to

       proceed by affidavit, claiming the court was required to conduct an evidentiary

       hearing on his petition.


[15]   Indiana Post-Conviction Rule 1(9)(b) provides that


               In the event that petitioner elects to proceed pro se, the court at
               its discretion may order the cause submitted upon affidavit. It
               need not order the personal presence of the petitioner unless his
               presence is required for a full and fair determination of the issues
               raised at an evidentiary hearing.


[16]   The decision to proceed by affidavit is best left to the post-conviction court’s

       discretion. Smith v. State, 822 N.E.2d 193, 201 (Ind. Ct. App. 2005), trans.

       denied. Thus, we will review a post-conviction court’s decision to forego an


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019   Page 7 of 13
       evidentiary hearing for an abuse of discretion. Id. “An abuse of discretion

       occurs if the decision is clearly against the logic and effect of the facts and

       circumstances before the court, or the reasonable, probable, or actual

       deductions to be drawn therefrom.” McElfresh v. State, 51 N.E.3d 103, 107 (Ind.

       2016).


[17]   Here, the post-conviction court ordered the matter to proceed by affidavit upon

       the State’s motion, following Hart’s decision to proceed pro se. Hart’s motions

       requesting an evidentiary hearing acknowledged that evidence from trial and

       appellate counsel was necessary to establish his claims and that the failure to do

       so would allow the State and post-conviction court to infer their testimony

       would not have been in his favor.


[18]   Hart did not specifically allege that an evidentiary hearing was necessary and

       how it would have assisted him in advancing his claims. Moreover, Hart did

       not assert that he would not have been able to obtain evidence from either

       counsel through affidavits to support his claims of ineffective assistance of

       counsel. Because Hart failed to demonstrate that an evidentiary hearing was

       necessary and how it would have benefited him, the post-conviction court did

       not abuse its discretion in ordering the matter to proceed by affidavit. See Smith,

       822 N.E.2d at 201-02 (observing that that the post-conviction court properly

       determined that the matter could advance by affidavit when the petitioner made

       only general assertions that he was denied an opportunity to present

       unidentified witnesses in support of his ineffective assistance of counsel claim).



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019   Page 8 of 13
                                 III. Ineffective Assistance of Counsel


[19]   To establish a post-conviction claim alleging a violation of the Sixth

       Amendment right to effective assistance of counsel, a defendant must establish

       before the post-conviction court the two components set forth in Strickland v.

       Washington, 466 U.S. 668 (1984). Overstreet v. State, 877 N.E.2d 144, 153 (Ind.

       2007).     First, a defendant must show that counsel’s performance was deficient.

       Overstreet, 877 N.E.2d at 153. This requires a showing that counsel’s

       representation fell below an objective standard of reasonableness and that

       counsel made errors so serious that counsel was not functioning as “counsel”

       guaranteed to the defendant by the Sixth Amendment. Id. Second, a defendant

       must show that the deficient performance prejudiced the defense. Id. This

       requires showing that counsel’s errors were so serious as to deprive the

       defendant of a fair trial, meaning a trial whose result is reliable. Id. 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. Id. A reasonable probability is one that is sufficient to

       undermine confidence in the outcome. Id. Further, counsel’s performance is

       presumed effective, and a defendant must offer strong and convincing evidence

       to overcome this presumption. Id.


                                                A. Trial Counsel


[20]   Hart claims that his trial counsel was ineffective for failing to raise the statutory

       defense to the possession offense charged in I.C. § 35-48-4-16(b). Hart asserts


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019   Page 9 of 13
       that his trial counsel should have argued that his possession of the drugs was

       outside of the 1000-foot radius of the park when he was initially observed and

       chased by police.


[21]   The choice of a defense is a matter of trial strategy. Id. at 154. Trial counsel

       should be given deference in choosing a trial strategy which at the time and

       under the circumstances, seems best. Bethel v. State, 110 N.E.3d 444, 450 (Ind.

       Ct. App. 2018), trans. denied.


[22]   Hart testified at trial admitting that he possessed the drugs only after he noticed

       them in the police car following his arrest. Indeed, Hart consistently

       maintained that he did not possess the drugs until after the arrest. Given Hart’s

       own testimony regarding his possession of the pills, it was certainly a

       reasonable strategy for his trial counsel to forego a defense that would have

       conceded possession in or near the park. See, e.g., Morgan v. State, 755 N.E.2d

       1070, 1076 (Ind. 2001) (holding that it is a reasonable strategic decision for trial

       counsel to forego inconsistent defenses).


                                              B. Appellate Counsel


[23]   Hart claims that appellate counsel was ineffective for failing to challenge on

       direct appeal the trial court’s refusal to give his tendered reasonable hypotheses




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019   Page 10 of 13
       of innocence instruction, and that counsel failed to adequately challenge the

       sufficiency of the evidence. 1


[24]   The standard of review for claims of ineffective assistance of appellate counsel

       is the same as for trial counsel. Hollowell v. State, 19 N.E.3d 263, 269 (Ind.

       2014). Additionally, ineffective assistance of appellate counsel claims fall into

       three primary categories: 1) the denial of access to an appeal, 2) waiver of

       issues, and 3) failure to present issues well. Id. at 270. To show deficient

       performance for failing to raise an issue, we will consider whether the unraised

       issue is significant and obvious from the face of the record and whether the

       unraised issue is clearly stronger that the raised issue. Reed v. State 856 N.E2d

       1189, 1195 (Ind. 2006). The inadequate presentation of certain issues is the

       most difficult to advance because it requires the reviewing court to reexamine

       the specific issue it has already adjudicated and determine whether the new

       arguments would have made any marginal effect on the previous decision.

       Hollowell, 19 N.E.3d at 270. Moreover, courts are presumed to know and apply

       the law to cases they decide. Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012).




       1
         Hart alleges in his appellate brief that trial counsel was ineffective for not properly challenging the
       sufficiency of the evidence and that trial counsel was ineffective for not tendering a reasonable theory of
       innocence jury instruction. Appellant’s Brief at 9. However, Hart’s amended petition for post-conviction relief
       alleged that appellate counsel was ineffective for those reasons. The post-conviction court addressed the
       claims advanced in the amended petition. To the extent that Hart argues on appeal that his trial counsel was
       ineffective with respect to these issues, they are waived. See Walker v. State, 843 N.E.2d 50, 58 n.2 (Ind. Ct.
       App. 2006), trans. denied (holding that a claim of ineffective assistance of counsel on new grounds not raised
       in the post-conviction relief petition is waived and not available for appellate review).

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019               Page 11 of 13
[25]   As for Hart’s claim that his appellate counsel was ineffective for failing to raise

       the issue that the trial court erred in allegedly failing to properly instruct the jury

       on the reasonable hypothesis of innocence, the record reflects that the jury was

       so instructed. A portion of the trial court’s final instructions provided that


                It is not necessary that facts be proved by direct evidence. Both
                direct evidence and circumstantial evidence are acceptable as a
                means of proof.


                Where proof of guilt is by circumstantial evidence only, it must
                be so conclusive and point so surely and unerringly to the guilt of
                the accused as to exclude every reasonable hypothesis of
                innocence.


       Supplemental Appendix Vol II at 29, 30. Hart is not entitled to post-conviction

       relief on this basis. 2


[26]   As for Hart’s claim that his appellate counsel was ineffective for failing to

       properly challenge the sufficiency of the evidence, Hart’s counsel argued on

       direct appeal that the evidence was insufficient to support the conviction

       because the State failed to establish that he possessed the drugs within 1000 feet




       2
         As an aside, we observe that even though the trial court provided such an instruction to the jury, it was not
       required to do so, inasmuch as our Supreme Court has determined that such an instruction is required only
       when the actus reus of the charged offense is established solely by circumstantial evidence. Hampton, 961
       N.E2d 480, 491 (Ind. 2012); see also Harper v. State, 963 N.E.2d 653, 661-662 (Ind. Ct. App. 2012) (holding
       that a reasonable theory of innocence instruction was not required where there was direct evidence of the
       defendant’s possession in a vehicle and hotel room where contraband was located). In addition to the
       circumstantial evidence that was presented here, the State also introduced the testimony of the police officers
       establishing that Hart possessed the pills, and testimony of the city park planner and civil engineer regarding
       the location of the park and the 1000-foot restricted zone, and the area where Hart was seen and
       apprehended.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019                Page 12 of 13
       of Akin Park. In rejecting Hart’s claim, this court concluded that Hart’s

       argument was merely a request to reweigh the evidence and that “the jury was

       free to disbelieve Hart’s self-serving testimony and draw a reasonable inference

       from the State’s evidence that Hart possessed the [drugs] when the officers first

       saw him at [the apartment building] within 1000 feet of Akin Park.” Hart, slip

       op. at 17.


[27]   Hart has merely reiterated the same contention here—as he did on direct

       appeal—that the State failed to show that he possessed the drugs prior to his

       arrest. That said, Hart has made no showing that his appellate counsel failed to

       adequately present a challenge to the sufficiency of the evidence, and we will

       not revisit the issue.


[28]   Judgment affirmed.


       Kirsch, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2378 | September 20, 2019   Page 13 of 13
