MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jun 27 2018, 9:35 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ryan T. McMullen,                                        June 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A02-1710-PC-2555
        v.                                               Appeal from the Grant Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark E. Spitzer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27C01-1112-PC-9



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018               Page 1 of 36
[1]   Ryan T. McMullen (“McMullen”) appeals the post-conviction court’s denial of

      his petition for post-conviction relief. McMullen raises three issues for our

      review, which we consolidate and restate as:


            I.      Whether McMullen received ineffective assistance of trial counsel;
                    and

           II.      Whether McMullen received ineffective assistance of appellate
                    counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In our memorandum decision in McMullen’s direct appeal, a panel of this court

      set forth the facts and initial procedural history underlying McMullen’s

      convictions as follows:


                 Greentree West Apartments (“Greentree”) is a public housing
                 complex in Marion with approximately fifty units. In January
                 2009, Julie Taylor, Greentree’s manager, distributed fliers to the
                 residents advising them of a future pesticide treatment in the
                 units. The lease agreements informed the residents that pesticide
                 treatments would be conducted two times per year. On January
                 8, 2009, Steve Gause, a maintenance employee at Greentree, was
                 treating Apartment 410 with pesticides and noticed a loaded
                 assault weapon in one of the kitchen cabinets. Gause then
                 contacted a detective with the Joint Effort Against Narcotics
                 Drug Task Force (“the JEAN Team”) and reported his
                 observation of the firearm.


                 Marion Police Detective John Kauffman received an e-mail,
                 warning police officers of a potential safety issue if they were
                 called to Apartment 410. Detective Kauffman knew that Janita

      Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 2 of 36
        Glasser lived at the apartment and that she was the mother of
        McMullen’s children. Detective Kauffman was aware that
        McMullen had been linked to previous incidents that involved
        weapons. Detective Kauffman obtained a mug shot of McMullen
        and showed it to Gause, who confirmed that McMullen had been
        staying at the apartment. Detective Kauffman discovered that
        there was an active warrant for McMullen’s arrest in an unrelated
        matter.


        Thereafter, JEAN team members went to Greentree to conduct
        surveillance and serve the arrest warrant on McMullen.
        McMullen’s vehicle was parked near Apartment 410, and
        Detective Kauffman saw several individuals go into that
        apartment for short periods of time. Based on his experience as a
        police officer, Detective Kauffman believed that such conduct
        was indicative of drug activity. Various members of the JEAN
        Team were also familiar with McMullen’s previous drug and
        weapons charges. At some point, Detective Kauffman observed a
        known drug user leave the apartment. Detective Kenneth Allen
        stopped her vehicle near Greentree and explained that the police
        were looking for “Pat.” Tr. p. 79. The individual said that she
        had just left Greentree and had spoken with “Ryan” in
        Apartment 410. Tr. p. 79. Although the woman tried to purchase
        crack cocaine from “Ryan,” who was subsequently identified as
        McMullen, he refused to sell her any drugs because she had “too
        much drama.” Tr. p. 295.


        Several police officers then approached the apartment and one of
        the detectives looked through the front window blinds that were
        partially open. Detective Allen looked through the window and
        saw McMullen sitting on the couch. Thereafter, a detective
        knocked on the door, held up his police badge, and said, “Ryan,
        this is the police. We have a warrant for your arrest. Come to the
        door. Open the door now.” Tr. p. 64. McMullen got up from the
        couch, released the blinds, stepped away from the window, and
        moved toward the kitchen where Gause had seen the weapon.

Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 3 of 36
        Tr. at 64–65. The police officers then entered the apartment and
        took McMullen into custody. Detective Kauffman smelled
        marijuana and saw an infant on the couch. After releasing the
        infant to her mother, the officers obtained a search warrant for
        the apartment.


        During the course of the search, the officers recovered nearly
        eighteen grams of cocaine, one kilogram of marijuana, and a
        nine[-]millimeter handgun. On May 4, 2009, the State charged
        McMullen as follows:


                 Count I, Possession of Cocaine, a class A felony


                 Count II, Dealing in Cocaine, a class B felony


                 Count III, Neglect of a Dependent, a class C felony


                 Count IV, Possession of Cocaine, a class C felony


                 Count V, Possession of marijuana, a class D felony


                 Count VI, Habitual Offender


        McMullen’s motion to suppress that he filed on July 28, 2010,
        alleged that the police officers’ entry into the apartment


                 4. Was unreasonable and in violation of the rights and
                 privileges of citizens secured under the 4th and 14th
                 Amendments to the United States Constitution and Article
                 1, Section 11 of the Indiana Constitution, because the drug
                 task force officers lacked the valid authority of a search
                 warrant to search . . . Glasser’s apartment for defendant,
                 and defendant had a reasonable expectation of privacy in

Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 4 of 36
                 the premises as a guest and had standing under the Indiana
                 Constitution as a guest of . . . Glasser to assert this claim.
                 The arrest warrant did not provide authority to enter . . .
                 Glasser’s apartment to search for a non-resident.


                                                 ***


                 6. Drug task force officers violated the rights and privileges
                 secured by Article 1, Section 11 of the Indiana
                 Constitution when an officer left the porch or walkway to
                 look in the window of [Apartment 410] because defendant
                 had a reasonable expectation of privacy from spying from
                 an area not a public way and therefore, a part of the secure
                 area of the apartment.


                 7. As a result of these acts that violate defendant’s right to
                 privacy secured by [the] 4th and 14th Amendments to the
                 United States Constitution and Article 1, Section 11 of the
                 Indiana Constitution, the fruits of the illegal entry must be
                 suppressed as having been gained by the benefit of the
                 illegal entry, notwithstanding the purported authority of
                 the subsequently acquired search warrant . . . since the
                 authority of the search warrant was based on probable
                 cause gained from the illegal entry.


                 8. No officer knowledgeable in the scope of the authority
                 granted by an arrest warrant would have a good faith belief
                 in the reasonableness of the entry to [the apartment] to
                 search for defendant, neither would such an officer
                 reasonably rely on the warrant subsequently issued, which
                 should not have issued, because the probable cause for the
                 warrant was based on an illegal entry of the premises as is
                 apparent in the text of the transcript of the probable cause
                 hearing.


Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 5 of 36
        Appellant’s App. pp. 38–40.


        Following a hearing, the trial court denied McMullen’s motion to
        suppress. The trial court determined, inter alia, that Gause was
        employed at Greentree and was acting as a private citizen when
        he entered the apartment. Gause’s entry into the apartment was
        not conducted at the direction of the police or with the intent to
        assist law enforcement agents. Thus, Gause’s discovery of the
        weapon was not the result of an unreasonable search in violation
        of the Fourth Amendment.


        The trial court also concluded that the police officers’ entry into
        the apartment was justified because the arrest warrant for
        McMullen granted them the implied authority to enter the
        residence and apprehend him. As a result, it was determined that
        the marijuana and cocaine seized pursuant to the subsequently
        issued search warrant were properly admitted into evidence.


        At the conclusion of McMullen’s jury trial on August 12, 2010,
        McMullen was convicted of possession of cocaine, a class A
        felony, possession of cocaine, a class C felony, and possession of
        marijuana, a class D felony. The trial court vacated the class C
        felony conviction in light of double jeopardy concerns.


        At the sentencing hearing that was conducted on September 10,
        2010, the trial court identified McMullen’s lengthy criminal
        history and his failure to report for incarceration after being
        released from jail as aggravating factors. The trial court
        recognized the undue hardship that McMullen’s incarceration
        would have on his dependents as the sole mitigating
        circumstance. After determining that the aggravating factors
        outweighed the mitigating circumstance, the trial court sentenced
        McMullen to fifty years on the cocaine possession charge and to
        a concurrent term of three years for possession of marijuana.


Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 6 of 36
      McMullen v. State, 27A02-1009-CR-1165, 2011 WL 2507057, at *1–3 (Ind. Ct.

      App. June 23, 2011) (footnotes omitted), trans. denied.


[4]   McMullen argued on direct appeal that the trial court improperly admitted the

      cocaine and marijuana into evidence during trial because Gause was acting as a

      police informant, and he illegally entered the apartment. Id. at *3. McMullen

      also claimed that his fifty-year sentence was inappropriate under Indiana

      Appellate Rule 7(B). Id. at *5. A panel of this court rejected McMullen’s

      arguments and affirmed his convictions and sentence. Id. at *6.


[5]   On December 7, 2011, McMullen petitioned for post-conviction relief. He

      subsequently amended his petition on February 9, 2017, in which he claimed:

      (1) ineffective assistance of trial counsel; and (2) ineffective assistance of

      appellate counsel. An evidentiary hearing was held on July 25. On October 31,

      the post-conviction court issued an order in which it denied McMullen’s

      petition for post-conviction relief.


[6]   McMullen now appeals.


                           Post-Conviction Standard of Review
[7]   The post-conviction petitioner bears the burden of establishing grounds for

      relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,

      562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a

      petition for post-conviction relief, the petitioner stands in the position of one

      appealing from a negative judgment. Id. On appeal, we do not reweigh evidence

      nor judge the credibility of witness; therefore, to prevail, McMullen must show
      Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 7 of 36
      that the evidence in its entirety leads unerringly and unmistakably to a

      conclusion opposite that reached by the post-conviction court. Id. Where, as

      here, the post-conviction court makes findings of fact and conclusions of law in

      accordance with Indiana Post-Conviction Rule 1(6), we do not defer to the

      court’s legal conclusions, but the "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." Henley v. State, 881 N.E.2d 639, 644

      (Ind. 2008).


                         Ineffective Assistance of Trial Counsel
[8]   McMullen contends that his trial counsel, Joe Keith Lewis (“Lewis”), was

      ineffective for several reasons. A claim of ineffective assistance of trial counsel

      requires a showing that: (1) Lewis’s performance was deficient by falling below

      an objective standard of reasonableness; and (2) that the deficient performance

      prejudiced McMullen such that “there is a reasonable probability that, but for

      counsel’s unprofessional errors, the result of the proceeding would have been

      different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). Failure to satisfy

      either of the two elements will cause the claim to fail. French v. State, 778

      N.E.2d 816, 824 (Ind. 2002). When it is easier to dispose of an ineffectiveness

      claim on the lack of prejudice, then this is the course we should follow. Trujillo

      v. State, 962 N.E.2d 110, 114 (Ind. Ct. App. 2011). Moreover, “[i]solated

      mistakes, poor strategy, or bad tactics do not necessarily amount to ineffective

      assistance of counsel.” Herrera v. State, 679 N.E.2d 1322, 1326 (Ind. 1997)



      Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 8 of 36
       (citations omitted). We address each of McMullens’s claims as to why Lewis

       was ineffective in turn.


                                        I. Failure to Call Witnesses

[9]    McMullen first claims that Lewis was ineffective at trial for failing to call three

       witnesses during trial: Stephen Gause, James Johnson, and Gerald Griffin. Our

       supreme court has explained that “[a] decision regarding what witnesses to call

       is a matter of trial strategy which an appellate court will not second-guess,

       although a failure to call a useful witness can constitute deficient performance.”

       Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998) (citation omitted). Trial

       counsel’s choice of which witnesses to call “is the epitome of a strategic

       decision.” Wisehart v. State, 693 N.E.2d 23, 48 n.26 (Ind. 1998). Thus, we will

       not find Lewis ineffective for failure to call a particular witness absent a clear

       showing of prejudice. Ben-Yisrayl v. State, 729 N.E.2d 102, 108 (Ind. 2000). It is

       McMullen’s burden on appeal to offer evidence as to who the witnesses were

       and what their testimony would have been. Lee v. State, 694 N.E.2d 719, 722

       (Ind. 1998).


       A. Stephen Gause

[10]   McMullen argues that Lewis was ineffective for failing to call Stephen Gause

       (“Gause”) during trial because: (1) Lewis referenced Gause’s expected

       testimony during his opening statement; and (2) Gause would have testified

       that when he opened the kitchen cabinet in the apartment, he only saw a

       firearm. McMullen specifically contends that this testimony “would have

       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 9 of 36
       supported the defense theory that someone other than McMullen placed the

       cocaine in the cabinet.” Appellant’s Br. at 27.


[11]   Lewis remarked during his opening statement that, “Mr. Steve Gause who is a

       Greentree employee, uh, is in the apartment spraying for bugs . . . [a]nd he

       opens the cabinet and he notices the firearm described in the cabinet and that’s

       all he sees. And that’s at one p.m. And there’s nothing else in that cabinet

       except the firearm.” Trial Tr. Vol. 1, p. 190. We initially note that Lewis never

       promised testimony from Gause as McMullen alleges. See Appellant’s Br. at 28;

       Myers v. State, 33 N.E.3d 1077, 1093 (Ind. Ct. App. 2015) (counsel was not

       ineffective for telling the jury that the defense would present certain evidence

       during trial, and then failing to do so), trans. denied. And Lewis explained

       during the evidentiary hearing that he did not consider calling Gause as a

       defense witness because he “would’ve wanted him on cross examination and

       not on direct.” PCR Tr. p. 9. Lewis was concerned that if the State was able to

       cross-examine Gause, it would be able to elicit testimony that would be harmful

       to McMullen. Id. at 10. Specifically, Lewis did not want the State to be able to

       question Gause about “why he was interested in this particular apartment.” Id.


[12]   Moreover, the mere fact that Gause would have testified that he saw only the

       firearm in the cabinet does not demonstrate that McMullen did not place the

       marijuana and cocaine in the cabinet later in the day. Gause was in the

       apartment around 1:00 p.m., and officers did not search the apartment and find




       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 10 of 36
       the marijuana and cocaine until hours later.1 The search took place after officers

       had conducted surveillance and watched a known “crack cocaine abuser” go in

       and out of the apartment. Trial Tr. Vol. 1, p. 62–63. And McMullen did not

       even challenge his marijuana conviction because his DNA and fingerprints

       were found on the packaging inside the cabinet where the firearm was also

       located.


[13]   For these reasons, we cannot say that Lewis’s decision not to call Gause was

       unreasonable, and we will not second guess this decision. Brown, 691 N.E.2d at

       447. And even if Lewis was deficient for failing to call Gause during trial, for

       the reasons listed above, we cannot say that doing so would have changed the

       outcome of McMullen’s trial. Accordingly, Lewis was not ineffective for failing

       to call Gause as a witness.


       B. James Johnson

[14]   McMullen next argues that Lewis was ineffective for failing to call James

       Johnson (“Johnson”) during trial. Specifically, McMullen contends that

       Johnson would have testified that he was at the apartment approximately two

       hours after Gause, and Johnson saw the firearm and a bag of marijuana in the

       cabinet—no cocaine. Johnson also would have testified that another individual

       in the apartment repeatedly opened the door to the cabinet. At the evidentiary




       1
        McMullen was arrested around 6:35 p.m., and officers searched the apartment at approximately 7:15 p.m.
       Trial Tr. Vol. 2, p. 378.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018        Page 11 of 36
       hearing, Lewis was asked if he spoke with anyone at the apartment the day of

       the police search, and he responded, “No I did not conduct interviews[,] and I

       should’ve done that.” PCR Tr. p. 11.


[15]   We do not need to determine whether Lewis performed deficiently by falling to

       call Johnson as a witness because McMullen has failed to establish that he was

       prejudiced by the decision for three reasons. First, Johnson’s alleged testimony

       would not have shown that someone other than McMullen put the cocaine in

       the cabinet. Johnson did not state that he saw anyone with cocaine or that he

       saw anyone put anything into the cabinet. His testimony simply would have

       been cumulative of testimony Lewis elicited during trial that there were at least

       five other people who visited the apartment on the day of McMullen’s arrest.

       Trial Tr. Vol. 2, p. 424. Second, Johnson is McMullen’s cousin, and it is likely

       that the State would have been able to attack his favorable testimony as biased.

       And third, Johnson’s testimony would have placed him inside the apartment

       around 3:00 or 3:30 p.m., and Jasmine Davis testified during trial that the group

       only stayed for around twenty minutes. Id. at 424–25. The police did not take

       McMullen into custody until a little after 6:30 p.m. that evening, and thus, even

       assuming Johnson’s testimony is true, there was plenty of time during which

       McMullen could have placed the cocaine in the cabinet next to the marijuana

       that had his DNA and fingerprints on it. For these reasons, we find that there is

       no reasonable probability that Johnson’s testimony would have changed the

       outcome of McMullen’s trial. Accordingly, Lewis was not ineffective for failing

       to call Johnson as a witness.


       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 12 of 36
       C. Gerald Griffin

[16]   McMullen next contends that Lewis was ineffective during trial for failing to

       call Gerald Griffin (“Griffin”) as a witness. Specifically, Griffin signed an

       affidavit which indicates that he would have testified that:


               On January 8, 2009 [Garrett] asked me to give her a ride to the
               Greentree Apartment complex. She said she wanted to confront
               [] McMullen about a rumor that had gotten back to her husband,
               [C.G.]. She did not say anything about wanting to buy drugs
               from [McMullen]. [Garrett] went inside the apartment and came
               out a few minutes later. When she came out she did not say
               anything about trying to buy drugs from [McMullen]. She said
               [McMullen] told her to leave because he ([McMullen]) did not
               want to be involved in her marriage.


       PCR Ex. Vol., McMullen’s Ex. 15. At trial, Garrett testified that she went to

       see McMullen on January 8, 2009, because she was trying to get cocaine. Trial

       Tr. Vol. 2, pp. 294–95. McMullen argues that Griffin’s testimony could have

       been used “to challenge Garrett’s credibility regarding her reason for visiting the

       apartment.” Appellant’s Br. at 33. Lewis was asked at the evidentiary hearing if

       he spoke with Griffin, and Lewis responded, “No I should’ve interviewed

       him[,] and I did not do that.” PCR Tr. p. 11.


[17]   We do not need to determine whether Lewis performed deficiently by failing to

       call Griffin as a witness because McMullen has failed to establish that he was

       prejudiced by the decision. Again, Garrett testified that she went to see

       McMullen to purchase cocaine. Griffin’s testimony that he did not hear Garrett

       say anything about drugs does nothing to refute her statement at trial.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 13 of 36
       Moreover, even if Griffin’s testimony is true—that Garrett went to McMullen’s

       that day to squash a rumor—this does not undermine her testimony that she

       was also looking to buy cocaine from McMullen. Simply put, we find that there

       is no reasonable probability that Griffin’s testimony would have changed the

       outcome of McMullen’s trial. Accordingly, Lewis was not ineffective for failing

       to call Griffin as a witness.


                                    II. Failure to Object to Evidence

[18]   McMullen next argues that Lewis was ineffective at trial for failing to object to

       several pieces of evidence during trial. Our supreme court has explained that

       “in order to prevail on a claim of ineffective assistance due to the failure to

       object, the defendant must show an objection would have been sustained if

       made.” Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007). And if the objection

       would have been sustained, McMullen still must show that but for Lewis’s

       failure to object, the result of his trial would have been different. Id. at 152.


       A. Testimony about an Arrest Warrant

[19]   McMullen first asserts that Lewis was ineffective at trial for failing to renew an

       objection made during a pretrial hearing regarding an outstanding warrant for

       McMullen’s arrest in an unrelated case.


[20]   Prior to trial, Lewis filed a motion to suppress the evidence seized from the

       apartment, and the State filed a notice of intent to use Indiana Evidence Rule

       404(b) evidence. Rule 404(b) provides in relevant part, “[e]vidence of a person's

       character or character trait is not admissible to prove that on a particular
       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 14 of 36
       occasion the person acted in accordance with the character or trait.” Here, the

       State sought to introduce evidence that McMullen had an outstanding arrest

       warrant on January 8, 2009. The trial court held a hearing on McMullen’s

       motion to suppress and the State’s intent to introduce evidence of the warrant.

       During the hearing, Lewis objected to the evidence related to the outstanding

       warrant. Appellant’s Trial App. p. 154. However, in a written order, the trial

       court overruled Lewis’s objection.2

[21]   During trial, an officer was asked if he was aware McMullen had a warrant for

       his arrest, Lewis then interjected:


                Your Honor, at this time, I’d like to state an objection for the
                record as to any evidence as to this investigation that flows as a result
                of, uh, the subject matter that we discussed in the Motion to Suppress.
                Specifically all the evidence that would be developed as a result
                of any search or any investigation at Greentree Apartments, number
                410, by law enforcement officers as a result of the conduct of Mr.
                Gause was the security man slash maintenance man at the
                apartment complex. And I request that the testimony and
                arguments, uh, at our pre-trial hearing be incorporated by referencing
                this motion, uh, in order to avoid repeating myself I would like to
                have this motion shown as a continuing objection.


       Trial Tr. Vol. 1, p. 195 (emphases added). The trial court then recognized

       Lewis’s statement as a continuing objection, and it overruled it. Id. at 195–96.




       2
         To the extent McMullen argues that the trial court erred when it allowed the State to introduce evidence of
       McMullen’s arrest warrant, see Appellant’s Br. at 35–36, this issue is waived because it was available at the
       time he filed his direct appeal. Timberlake v. State, 753 N.E.2d 591, 597–98 (Ind. 2001).

       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018            Page 15 of 36
       Based on Lewis’s statement above, he did make a continuing objection to

       evidence of McMullen’s arrest warrant since it was covered at the hearing on

       the motion to suppress.3 Accordingly, Lewis’s performance was not deficient,

       and he was therefore not ineffective when he issued a continuing objection at

       trial relating to McMullen’s arrest warrant.


[22]   McMullen also argues that Lewis erred in failing to ask for a limiting

       instruction regarding the arrest warrant.4 Although requesting a limiting

       instruction would have been the preferred practice, we cannot say that its

       absence rises to the level of prejudice necessary to constitute ineffective

       assistance of counsel. See McCullough v. State, 973 N.E.2d 62, 78–79 (Ind. Ct.

       App. 2012), trans. denied. The jury’s knowledge that McMullen had an

       outstanding arrest warrant has nothing to do with the crimes he was convicted

       of. It simply provided the jury with additional context as to why McMullen was

       arrested on January 8, 2009. McMullen has failed to persuade us that there is a

       reasonable probability that but for the absence of a jury instruction limiting the

       use of evidence regarding the arrest warrant, the result of his trial would have

       been different. Accordingly, Lewis was not ineffective for failing to request a

       limiting instruction regarding the arrest warrant at trial.




       3
         We acknowledge that during the evidentiary hearing, Lewis noted that he did not renew the objection at
       trial because he thought “it would be regarded as harmless error and it would just be an empty objection[.]”
       PCR Tr. p. 12. However, for the reasons stated above, we conclude that Lewis’s objection at trial sufficiently
       covered the arrest warrant evidence.
       4
           The post-conviction court did not explicitly address this issue in its conclusions of law.


       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018             Page 16 of 36
       B. Testimony about Prior Drug Sales

[23]   McMullen next contends that Lewis was ineffective at trial for failing to object

       to Garrett’s testimony regarding alleged prior drug sales under Indiana

       Evidence Rule 404(b). McMullen alleges that the State was able to present

       “testimony from [Garrett], implying that she had purchased illegal drugs from

       McMullen in the past.” Appellant’s Br. at 38. We disagree.


[24]   Garrett was not asked at trial if she purchased cocaine on a prior occasion, and

       she did not testify that she ever purchased cocaine from McMullen on the prior

       occasion. Garrett’s testimony is as follows:


               [State]:         Had you been at [the apartment] on one or more
                                occasions?
               [Garrett]:       I went one other time.
               [State]:         One other time. Uh, did you always meet with the
                                defendant, Ryan McMullen?
               [Garrett]:       Yes


       Trial Tr. Vol. 2, p. 296. Garrett testified previously that she was addicted to

       cocaine in 2009 and that she went to McMullen’s on January 8, 2009, to

       purchase cocaine from McMullen. However, her testimony that she met

       McMullen one other time at the same apartment is not objectionable.


[25]   Evidence Rule 404(b) “is designed to prevent the jury from assessing a

       defendant’s present guilt on the basis of his past propensities, the so called

       ‘forbidden inference.’” Hicks v. State, 690 N.E.2d 215, 218–19 (Ind. 1997). But

       we have previously explained that “evidence which creates a mere inference of

       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 17 of 36
       prior bad conduct does not fall within the purview of” Rule 404(b). Dixson v.

       State, 865 N.E.2d 704, 712 (Ind. Ct. App. 2007), trans. denied. Here, the only act

       that Garrett testified to is meeting McMullen at the apartment on a prior

       occasion. There is no indication that Garrett bought cocaine from McMullen

       on that prior occasion, or that she went there for any other illegal purpose. See

       Rogers v. State, 897 N.E.2d 955, 960 (Ind. Ct. App. 2008), trans. denied.

       Therefore, Garrett’s challenged testimony does not run afoul of Rule 404(b),

       and Lewis was not ineffective for failing to object to admissible evidence. See

       Overstreet, 877 N.E.2d at 155.


       C. McMullen’s Jail Phone Calls and Letter

[26]   McMullen next contends that Lewis was ineffective at trial for failing to object

       under Rule 404(b) to: (1) a recorded jail phone call in which McMullen

       references a pending charge for failure to appear; (2) a recorded jail phone call

       in which McMullen references a warrant for his arrest; and (3) a letter written

       by McMullen from jail four years prior to the current offense in which he

       discusses his plan to stop selling cocaine and to focus on selling only marijuana

       and ecstasy moving forward.


[27]   Regarding the jail phone calls, McMullen specifically argues that the portions of

       the calls referencing a pending charge and an outstanding warrant “were

       irrelevant and inadmissible under Rule 404(b).” Appellant’s Br. at 39. In its

       order, the post-conviction court noted that Lewis’s failure to object under Rule

       404(b) was not ineffective because “the jury already kn[e]w that McMullen had


       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 18 of 36
       a warrant, because that was the reason for his arrest at the Greentree address,”

       and that the reference to a pending charge was admissible because it “did not

       specifically identify any charges or convictions.” Appellant’s PCR App. p. 213.


[28]   Both challenged portions of McMullen’s jail house calls took place when he

       called Glasser on the night of his arrest. The challenged excerpts from the

       phone calls5 are as follows:


                [McMullen]: They ain’t brought me no charges yet though. All I
                            got is a failure to appear but they got (unclear)
                            consent cause they weren’t suppose[d] to kick that
                            door in. You know what I’m saying?


       Trial Ex. Vol., State’s Ex. 14, p. 2.


                [McMullen]: Right now they got me charged with the warrant.
                            You know what I’m sayin’? Where I gotta do the
                            eight and a half months or whatever.


       Id. at State’s Ex. 15, p. 4.


[29]   The State argues that McMullen’s statements “were the statements of a party

       opponent,” and thus, “[t]here was a legal basis for their admission.” Appellee’s

       Br. at 22. The State is incorrect. Indiana Evidence Rule 801(d)(2) explains that

       a “statement [] offered against an opposing party” that “was made by the



       5
        We note that at trial Lewis objected to the jury receiving a transcript of the phone calls. See Trial Tr. Vol. 2,
       pp. 386, 390. Although the trial court overruled the objection, it did not allow the jury to take the transcripts
       back to the jury room, and it issued the jury a limiting instruction that the transcript was solely provided to
       assist in listening to the tape. Id. at 387, 390.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018                Page 19 of 36
       party,” is not hearsay. However, McMullen makes no claim that his statements

       in the jail house calls were hearsay. Rather, McMullen argues that Lewis was

       ineffective for failing to object because he asserts that the calls constituted

       inadmissible evidence under Rule 404(b). A statement made by a party may still

       be inadmissible under Rule 404(b) or Indiana Evidence Rule 402 (“Irrelevant

       evidence is not admissible.”).


[30]   However, we cannot say that Lewis’s failure to object to the phone calls

       amounts to ineffective assistance of counsel. First, the jury already knew that

       there was a warrant for McMullen’s arrest. See Trial Tr. Vol. 1, pp. 185, 186,

       195; Vol. 2, pp. 270, 376. Therefore, even if Lewis had objected to the jury

       hearing about McMullen’s warrant, it was cumulative and likely would have

       been overruled. See Overstreet, 877 N.E.2d at 155.


[31]   Moreover, the jury subsequently heard testimony that McMullen’s outstanding

       warrant was for a failure to appear. Trial Tr. Vol. 2, p. 399. This fact did

       nothing more than provide context for what the jury already knew, and it does

       nothing to undermine McMullen’s conviction on completely unrelated evidence

       and charges. For these reasons, McMullen has failed to persuade us that there is

       a reasonable probability that if Lewis had objected under Rule 404(b) or Rule

       402 to his statements in a jail house phone call, the result of his trial would have

       been different.


[32]   McMullen also asserts that Lewis was ineffective for failing to object to the

       admission of an undated letter written by McMullen and found in Glasser’s


       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 20 of 36
       apartment. Specifically, McMullen contends that the information contained in

       the letter “was irrelevant and inadmissible under Evidence Rule 404(b).”

       Appellant’s Br. at 40. The State responds that the letter was relevant because it

       contained references to future acts and that any information relating to

       McMullen’s past drug use was admitted elsewhere during trial and was thus

       merely cumulative.


[33]   Glasser testified that the letter in question was written four years earlier,6 Trial

       Tr. Vol. 1, p. 228, and in it McMullen writes, “I am gone [sic] get a job and sell

       weed and x. No more cocaine.” Trial Ex. Vol., State’s Ex. 13. Although the

       letter was allegedly written four years earlier, McMullen references future drug-

       related activity which is relevant to the offenses for which he was charged in the

       case before us. Further, the challenged statement in the letter actually supports

       McMullen’s theory that the cocaine was not his, because he stated that he was

       no longer going to sell cocaine.


[34]   McMullen’s statement in the letter was also cumulative of other evidence

       presented to the jury.7 The jury heard evidence that McMullen sold marijuana

       in the past and that officers smelled the odor of marijuana upon entering

       Glasser’s apartment on the day of McMullen’s arrest. See Tr. Vol. 1, pp. 186,



       6
           It appears that McMullen wrote the letter to Glasser from jail.
       7
         In its brief, the State alleges that “the fact that [McMullen] alluded to this sale of drugs in one
       communication and the warrant in another could not have undermined confidence in the outcome of his
       proceeding.” Appellee’s Br. at 22 (citing Trial Tr. Vol. 1, pp. 61–66, 79–80). However, six of the State’s nine
       citations in support of its claim are from the trial court’s hearing on the motion to suppress and the intent to
       use Rule 404(b) evidence at trial, and thus, this evidence was never presented to the jury.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018               Page 21 of 36
       189, 198; Vol. 2, pp. 270, 376–77. And Garrett testified that she was at

       Glasser’s apartment on January 8, 2009, to purchase cocaine from McMullen.

       See Tr. Vol. 2, pp. 295, 297. For these reasons, McMullen has failed to persuade

       us that there is a reasonable probability that if Lewis had objected to the

       admission of the letter, the result of his trial would have been different.

       Accordingly, Lewis was not ineffective for failing to object to the jail house

       phone calls or the letter at trial.


       D. Testimony from Mark Stefanatos

[35]   McMullen next argues that Lewis was ineffective at trial for failing to object to

       testimony from Marion Police Department Sergeant Mark Stefanatos

       (“Sergeant Stefanatos”) that: “(1) drug dealers typically possess digital scales;

       (2) the amount of cocaine found in this case was ‘indicative’ of dealing; (3)

       crack users generally do not possess crack because they consume it immediately

       after purchase; and (4) the amount of marijuana found in this case was ‘typical’

       of a dealer.” Appellant’s Br. at 41; Trial Tr. Vol. 2, pp. 263–64. The State

       responds that “[t]he testimony in fact did not comment upon [McMullen]

       specifically, and so it was not objectionable.” Appellee’s Br. at 23.

[36]   Both McMullen and the State rely on our court’s decision in Scisney v. State, 690

       N.E.2d 342 (Ind. Ct. App. 1997), aff’d in relevant part, 701 N.E.2d 847 (Ind.

       1998), to support their respective positions. In that case, a detective testified that

       the specific facts of the case suggested that the defendant was a dealer rather

       than a user. Id. at 345. On appeal, a panel of this court held:


       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 22 of 36
               [A] police officer or law enforcement official who is offered and
               qualified as an expert in the area of drugs, drug trade, drug
               trafficking, etc., may offer testimony as to whether particular
               facts tend to be more or less consistent with dealing in drugs.
               However, the expert may not make conclusions as to whether the
               defendant is a dealer or whether the defendant had the intent to
               deal or deliver. Similarly, the expert may not be presented with a
               hypothetical set of facts which reflect the facts of the case and be
               asked to conclude whether a hypothetical individual is more
               likely a dealer or user. In essence, the expert may comment on
               the facts of the case, but must refrain from making any
               conclusions as to the defendant's intent, guilt, or innocence.


       Id. at 346. The Scisney court then held that because the detective “offered

       conclusions as to [the defendant’s] intent to deliver . . . the testimony should

       have been excluded.” Id. However, we upheld the defendant’s conviction

       because we found that the admission of the detective’s inadmissible evidence

       constituted harmless error based on substantial independent evidence of guilt.

       Id. at 347.


[37]   Sergeant Stefanatos’s challenged testimony here is as follows:


               [State]:         Ok. Uh, in your trained experience, um, what are
                                digital scales used for?

               [Stefanatos]: Uh, weighing out illegal narcotics.

               [State]:         Uh, would you typically find that on somebody
                                that’s a crack addict or a user?

               [Stefanatos]: No.

               [State]:         Who would you typically find that on?

               [Stefanatos]: Someone who would be [] distributing them?
       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 23 of 36
         [State]:          Dealing them?

         [Stefanatos]: Yes, dealing them.

         [State]:          Uh, that amount of cocaine, um, in your training
                           experience would that be indicative or a lot for
                           someone who’s a user or crack addict?

         [Stefanatos]: Well, most crack addicts you wouldn’t hardly find
                       crack on ‘em unless you find ‘em leaving a crack
                       house, because they would smoke it immediately
                       after purchasing.

         [State]:          [I]s that a lot for a user to have?

         [Stefanatos]: Yes it would be.

         [State]:          Is that indicative of someone dealing?

         [Stefanatos]: Yes.

         [State]:          Uh, marijuana . . . same with the marijuana? Is that
                           a lot of marijuana for someone to, uh, have a party
                           with?

         [Stefanatos]: Yeah[.]

         [State]:          So where would you usually typically find that
                           much marijuana?

         [Stefanatos]: Uh, dealer.


Trial Tr. Vol. 2, pp. 263–64.8




8
  McMullen asserts that “Stefanatos’s testimony, that the mere presence of drugs was indicative of dealing,
was also objectionable” under Indiana Evidence Rule 403(b). Appellant’s Br. at 42. Rule 403(b) prohibits
relevance evidence “if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting

Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018              Page 24 of 36
[38]   During the detective’s testimony in Scisney, the State consistently referred to the

       defendant when it recited specific facts of the case. 690 N.E.2d at 346. Here

       however, Sergeant Stefanatos is doing exactly what the Scisney court held was

       appropriate, “offer[ing] testimony as to whether particular facts tend to be more

       or less consistent with dealing in drugs.” Id.


[39]   Distinguished from Scisney, the State did not mention McMullen specifically to

       Sergeant Stefanatos throughout the challenged testimony, and it did not present

       Sergeant Stefanatos with overtly particular facts pertinent to McMullen’s case.

       Moreover, the State never referred to McMullen as a suspected dealer in its

       questioning of Sergeant Stefanatos. See Scisney, 690 N.E.2d at 346 n2 (“The fact

       that [the detective] testified to whether specific facts of the case were consistent

       with drug dealing is not problematic in itself. Rather, we find it disturbing that

       the conclusions followed immediately after he had concluded the person to be a

       ‘suspect dealer.’”). For these reasons, Lewis was not deficient for failing to

       object to Sergeant Stefanatos’s admissible testimony.9 See Overstreet, 877 N.E.2d

       at 155.




       cumulative evidence.” However, as can be seen from his testimony above, Stefanatos did not testify that the
       mere presence of drugs was indicative of dealing. Thus, Stefanatos’s testimony was not prejudicial, misleading,
       or confusing.
       9
         And even if Lewis was deficient for failing to object to Sergeant Stefanatos’s challenged testimony, the
       testimony does nothing more than explain to the jury that: (1) digital scales are typically used for weighing
       narcotics; and (2) the amount of cocaine and marijuana recovered was indicative of someone dealing. This
       does nothing to rebut McMullen’s defense at trial that the cocaine was not his. And McMullen was not
       convicted of dealing marijuana or cocaine. Thus, McMullen has failed to persuade us that there is a
       reasonable probability that the outcome of his trial would have been different but for Sergeant Stefanatos’s
       testimony.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018              Page 25 of 36
       E. Testimony from Detectives about Drug Activity at Greentree

[40]   McMullen next contends that Lewis was ineffective for failing to object to

       testimony from two detectives about past drug activity at Greentree.

       Specifically, Grant County Sheriff’s Department Detective Michael Andry

       testified that he “worked several narcotics investigations and criminal activity”

       at Greentree. Trial Tr. Vol. 1, p. 194. And Detective Kauffman testified that he

       had conducted investigations at Greentree in the past. Trial Tr. Vol. 2, p. 373.

       McMullen asserts that the detective’s testimony “was unduly prejudicial and

       inadmissible under Evidence Rules 403 and 404(b).” Appellant’s Br. at 43. We

       disagree.


[41]   Indiana Evidence Rule 403(b) prohibits relevance evidence “if its probative

       value is substantially outweighed by a danger of one or more of the following:

       unfair prejudice, confusing the issues, misleading the jury, undue delay, or

       needlessly presenting cumulative evidence.” There is nothing prejudicial or

       misleading about the detective’s statements regarding previous experience

       conducting investigations at Greentree. And the statements do not contain any

       reference to McMullen, either explicitly or implicitly. Thus, testimony from the

       two detectives was not unduly prejudicial under Rule 403. Cf. Hernandez v. State,

       785 N.E.2d 294, 300 (Ind. Ct. App. 2003) (statements from an officer indicating

       that defendant’s business was engaged in prostitution when defendant was on

       trial for prostitution were unduly prejudicial), trans. denied.


[42]   The detective’s testimony also does not run afoul of Rule 404(b) because the

       statements do not mention any character trait of or wrongful act by McMullen.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 26 of 36
       See Dixson, 865 N.E.2d at 712. Accordingly, Lewis was not ineffective for

       failing to object to the detective’s admissible testimony about previous

       experiences at Greentree. See Overstreet, 877 N.E.2d at 155.


                 III. Failure to Present Mitigating Evidence at Sentencing

[43]   McMullen next argues that Lewis was ineffective during the sentencing hearing

       because he: (1) failed to conduct a reasonable investigation of McMullen’s

       character; (2) failed to arrange for McMullen to receive an evaluation from a

       mental health professional; and (3) failed to present sufficient evidence of

       mitigating circumstances. Appellant’s Br. at 48. McMullen must show both that

       Lewis performed deficiently at the sentencing hearing and that McMullen was

       prejudiced by any deficient performance. State v. Miller, 771 N.E.2d 1284, 1288

       (Ind. Ct. App. 2002), trans. denied. McMullen has not met that burden.


[44]   We initially note that Lewis did argue several mitigating circumstances at

       McMullen’s sentencing hearing including that: (1) despite McMullen’s lengthy

       criminal history, most of his offenses were for minor violations; (2) McMullen’s

       criminal records showed a pattern of him being overcharged; (3) McMullen

       does not blame anyone else for his conduct; and (4) McMullen was abused and

       neglected as a child. See Trial Tr. Vol. 2, pp. 493–96. Moreover, because of the

       presentence investigation report, the sentencing court was already well aware of

       McMullen’s background and any mental health concerns. Appellant’s Trial

       App. Vol. 2, pp. 165–78.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 27 of 36
[45]   McMullen challenged his sentence on direct appeal, and a panel of our court

       noted:


                McMullen has been incarcerated on several occasions; has
                violated the terms of adult probation; has been cited several times
                for misconduct in the Grant County jail; has been charged with
                eighteen additional crimes that were later dismissed; and, as of
                sentencing, had attempted murder, Class D felony criminal
                recklessness, and Class C felony battery by means of a deadly
                weapon charges pending. We find McMullen’s numerous
                firearms-related convictions to be particularly disturbing.
                McMullen’s multitudinous juvenile adjudications, criminal
                convictions, and other contacts with the criminal justice system
                have not caused him to reform himself. The nature of
                McMullen’s offenses and his character justify his maximum
                sentence.


       McMullen, 2011 WL 2507057, at *6. And the post-conviction court echoed our

       court’s conclusions in its order when it explained:


                McMullen had been offered many different opportunities prior to
                the incidents in question to rehabilitate his behavior, including
                probation, placement at the Youth Opportunity Center,
                placement at George Junior, cognitive behavioral therapy,
                behavioral aftercare, POOL School, Family Services Homebased
                Program, alcohol and drug counseling, and intensive outpatient
                treatment, in addition to the intermediate punitive sanctions of
                license suspensions, detention, house, arrest, and jail.
                Throughout the course of his criminal history, he had
                demonstrated no interest in changing his criminal behavior.


                                                        ***

                Thus, what was outcome-determinative at sentencing was not the
                quality of the argument that his attorney made on the day of
       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 28 of 36
               sentencing, but rather McMullen’s increasingly troubling
               behavior and history which occurred in the thirteen years prior to
               the day of sentencing.


       Appellant’s PCR App. pp. 215, 217.


[46]   We agree. The additional mitigating evidence that McMullen argues could have

       been offered by his friends and family, see Appellant’s Br. at 51–52, would not

       have favorably impacted his sentence. Moreover, that same evidence would

       have done nothing to account for or explain the illegal possession of marijuana

       and cocaine for which McMullen was convicted. Cf. McCarty v. State, 802

       N.E.2d 959, 963–969 (Ind. Ct. App. 2004) (holding that trial counsel was

       ineffective where defendant was convicted of child molestation and prior to

       sentencing counsel failed to investigate defendant’s mental disability,

       defendant’s molestation as a teenager, and that defendant would respond well

       to treatment), trans. denied.


[47]   For these reasons, we find that there is no reasonable probability that

       McMullen would have received a different sentence if Lewis would have

       argued more or different mitigating circumstances at sentencing. See Johnson v.

       State, 832 N.E.2d 985, 1005 (Ind. Ct. App. 2005), trans. denied; McCarty, 802

       N.E.2d at 967 (explaining that “[t]he dispositive question in determining

       whether a defendant is prejudiced by counsel’s failure at sentencing to present

       mitigating evidence is what effect the totality of the omitted mitigation evidence

       would have had on the sentence.”). Accordingly, McMullen has failed to

       demonstrate that he received ineffective assistance of counsel at sentencing.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 29 of 36
                                                 IV. Cumulative Error

[48]   McMullen’s final claim of ineffective assistance of trial counsel is that he was

       prejudiced by the cumulative effect of Lewis’s alleged errors.10 Our supreme

       court has explained that errors by trial counsel which are not by themselves

       sufficient to prove ineffective assistance of counsel may add up to ineffective

       assistance when viewed cumulatively. French, 778 N.E.2d at 826. However, we

       have determined that McMullen’s claims that he received ineffective assistance

       of counsel are without merit, either because Lewis’s performance was not

       deficient, or because McMullen was not prejudiced by any alleged deficient

       performance. See Myers, 33 N.E.3d at 1114 (holding that “[a]lleged trial

       irregularities which standing alone do not amount to error do not gain the

       stature of reversible error when taken together.”) (citations and internal

       quotation omitted).


[49]   Moreover, we cannot say that any of Lewis’s alleged errors cumulatively did

       substantial damage to McMullen’s defense, i.e., that someone else placed the

       cocaine in the cabinet. The jury heard testimony from Garrett that she went to

       the apartment to buy cocaine from McMullen on January 8, 2009. Officers then

       watched as at least five individuals went in and out of the apartment for short

       periods of time—conduct that is indicative of drug related activity. When

       officers executed the search warrant on the apartment, they obtained nearly




       10
            The post-conviction court did not explicitly address this issue in its conclusions of law.


       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018              Page 30 of 36
       eighteen grams of cocaine, one kilogram of marijuana, a nine-millimeter

       handgun, and a digital scale. Although there was no identifiably available

       fingerprints or DNA found on the baggie of cocaine, the State established that

       the DNA found on the baggie of marijuana was consistent with McMullen’s

       DNA. And McMullen’s fingerprints were found on the baggie of marijuana. All

       of the items were located next to each other in a kitchen cabinet. McMullen was

       also alone in the apartment with an infant when the search warrant was

       executed. For these reasons, there is no reasonable probability that the

       accumulation of Lewis’s alleged errors made a difference at McMullen’s trial.

       See French, 778 N.E.2d at 826–27. Accordingly, we do not find any cumulative

       error.


                      Ineffective Assistance of Appellate Counsel
[50]   McMullen also claims that his appellate counsel, C. Robert Rittman

       (“Rittman”), was constitutionally ineffective. When we review claims of

       ineffective assistance of appellate counsel, we use the same standard applied to

       claims of ineffective assistance of trial counsel, i.e., McMullen must show that

       Rittman’s performance fell below an objective standard of reasonableness and

       that there is a reasonable probability that, but for Rittman’s deficient

       performance, the result of the proceeding would have been different. Manzano v.

       State, 12 N.E.3d 321, 329 (Ind. Ct. App. 2014) (citing Harris v. State, 861 N.E.2d

       1182, 1186 (Ind. 2007)), trans. denied. McMullen contends that Rittman was

       ineffective in two ways, and we will address each in turn.



       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 31 of 36
           I. Failure to Properly Challenge the Search and Seizure of Evidence

[51]   McMullen first argues that Rittman failed to adequately challenge the search

       and seizure of evidence on appeal. Our supreme court has explained that claims

       of inadequate representation on an issue that was not found waived in the direct

       appeal “are the most difficult for convicts to advance and reviewing tribunals to

       support” for two reasons. Bieghler v. State, 690 N.E.2d 188, 195 (Ind. 1997).


[52]   First, “these claims essentially require the reviewing tribunal to re-view specific

       issues it has already adjudicated to determine whether the new record citations,

       cause references, or arguments would have had any marginal effect on their

       previous decision.” Id. And second, our court is not limited to a review of the

       “facts and cases cited and arguments made by the appellant’s counsel. We

       commonly review relevant portions of the record, perform separate legal

       research, and often decide cases based on legal arguments and reasoning not

       advanced by either party.” Id.


[53]   Here, McMullen specifically argues that Rittman failed to raise “several

       important points and arguments, favoring suppression[.]” Appellant’s Br. at 61.

       First, McMullen contends that Rittman failed to include several facts to

       demonstrate that Gause was a government actor when he entered Glasser’s

       apartment. However, our court had access to each piece of evidence that

       McMullen claims Rittman was ineffective for failing to bring to this court’s

       attention. See Appellant’s Trial App. Vol. 1, pp. 22, 75, 106, 120–21, 127. And

       in McMullen’s direct appeal, a panel of this court reviewed the evidence

       addressing Gause’s status as a government actor and found that “the trial court
       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 32 of 36
       reasonably concluded that Gause was not acting as an agent or instrument for

       the State when he entered the apartment to spray for pests.” McMullen, 2011

       WL 2507057, at *4.


[54]   McMullen also alleges that if Rittman had cited to this court’s opinion in Shultz

       v. State, 742 N.E.2d 961 (Ind. Ct. App. 2011), trans. denied, that “there is a

       reasonable probability the court would have found that [the officers] looking

       into the window [of the apartment] constituted an illegal search.” Appellant’s

       Br. at 63.11 But in Shultz, officers wiped dirt off of a vehicles wheel well to reveal

       a partial VIN, and they toured the defendant’s property after no one answered

       the door. Shultz, 742 N.E.2d at 965–66. Here, there was an active warrant for

       McMullen’s arrest, two police officers identified McMullen before entering the

       apartment, and an officer saw McMullen in the apartment through partially

       opened blinds. Moreover, Detective Allen confirmed McMullen was inside the

       apartment before police knocked. Simply put, Shultz is readily distinguishable

       from the case before us, and even if Rittman had cited to it in his brief, it would

       not have changed our court’s decision in McMullen’s direct appeal. See Bieghler,

       690 N.E.2d at 196 (holding that relief on an ineffectiveness challenge resting on




       11
          We also note that it is likely that the panel that handled McMullen’s direct appeal was well aware of Shultz
       v. State even without Rittman citing to it in his brief. On appeal, “[w]e commonly . . . perform separate legal
       research, and often decide cases based on legal arguments and reasoning not advanced by either party.”
       Bieghler, 690 N.E.2d at 195. And McMullen’s trial counsel cited to Shultz in the motion to suppress, see
       Appellant’s Trial App. Vol. 1, pp. 33–34, which was also before our court in McMullen’s direct appeal.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018             Page 33 of 36
       appellate counsel’s presentation of a claim is “only appropriate when the

       appellate court is confident it would have ruled differently.”).


[55]   For all of these reasons, we find that there was nothing unreasonable or

       prejudicial about Rittman’s presentation of the search and seizure issue on

       appeal.


                    II. Failure to Challenge Exclusion of Evidence of Bias

[56]   McMullen next argues that Rittman was ineffective because he failed to

       challenge on appeal the exclusion of evidence that another witness was charged

       with drug dealing. Ineffective assistance is very rarely found in cases where a

       defendant asserts that appellate counsel failed to raise an issue on direct appeal

       because the decision of what issues to raise is one of the most important

       strategic decisions to be made by appellate counsel. Manzano, 12 N.E.3d at 330.

       Indeed, our supreme court has warned that we “should be particularly sensitive

       to the need for separating the wheat from the chaff in appellate advocacy,” and

       we “should not find deficient performance when counsel’s choice of some

       issues over others was reasonable in light of the facts of the case and the

       precedent available to counsel when that choice was made.” Reed v. State, 856

       N.E.2d 1189, 1195 (Ind. 2006).


[57]   McMullen specifically contends that Rittman was ineffective on appeal for

       failing to challenge the trial court’s exclusion of Garrett’s pending drug charge.

       Garrett had a charge for dealing at the time she testified in McMullen’s trial,

       which was reduced to possession with an option for dismissal if she followed


       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 34 of 36
       through with drug counseling. McMullen alleges that “evidence of Garrett’s

       dealing charge, the break she received from the State, and the possibility of

       having the case dismissed completely, was relevant to bias.” Appellant’s Br. at

       64. And “[t]here was a reasonable degree of probability that Garrett was

       motivated to give her testimony, which was favorable to the prosecution, due to

       the pending dealing charge and her desire to have that case dismissed.” Id. We

       disagree.

[58]   Garrett’s pending drug charge and the deal she reached with the State were

       based on her participation in counseling and had nothing to do with her

       testimony in McMullen’s case. When Garrett, a known drug user at the time,

       first gave her statement to police that she went to the apartment on January 8,

       2009, to see McMullen, she had not been arrested and she was not working for

       the State as an informant. And at trial, Garrett admitted that she attempted to

       purchase cocaine from McMullen on January 8 but was unable to. Garrett’s

       self-admission of attempted criminal behavior further diminishes McMullen’s

       argument that Garrett was biased against him when she testified at trial. For

       these reasons, Rittman’s decision not to challenge the trial court’s exclusion of

       Garrett’s irrelevant pending drug charge was not deficient. See Graham v. State,

       941 N.E.2d 1091, 1099 (Ind. Ct. App. 2011) (noting that, to prove ineffective

       assistance of counsel, issues not raised must have been “obvious from the face

       of the record”). Accordingly, the post-conviction court properly concluded that

       McMullen was not denied the effective assistance of appellate counsel.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 35 of 36
                                                 Conclusion
[59]   Based on the facts and circumstances before us, the post-conviction court did

       not clearly err when it rejected McMullen’s claims of ineffective assistance of

       trial counsel and appellate counsel. Accordingly, we affirm the judgment of the

       post-conviction court denying McMullen’s petition for post-conviction relief.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1710-PC-2555 | June 27, 2018   Page 36 of 36
