MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule
65(D), this Memorandum Decision
                                                             Nov 10 2015, 8:27 am
shall not be regarded as precedent or
cited before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.


PRO SE APPELLANT                                   ATTORNEYS FOR APPELLEE
Stacey Yuron Hart                                  Gregory F. Zoeller
Carlisle, Indiana                                  Attorney General of Indiana

                                                   Justin F. Roebel
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Stacey Yuron Hart,                                      November 10, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A01-1411-CR-472
        v.                                              Appeal from the Vanderburgh
                                                        Circuit Court
State of Indiana,                                       The Honorable David D. Kiely,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        82C01-1407-F3-923



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-472 | November 10, 2015   Page 1 of 9
[1]   Stacey Yuron Hart appeals his conviction of and sentence for Level 3 felony

      dealing in methamphetamine, 1 Level 6 felony possession of a narcotic, 2 Class A

      misdemeanor possession of paraphernalia, 3 and his adjudication as an habitual

      offender. 4 He argues his trial counsel was ineffective because trial counsel did

      not move to suppress certain evidence, did not object to Hart’s adjudication as

      an habitual offender, and did not object to Hart’s sentence. We affirm.


                                      Facts and Procedural History
[2]   From July 15-19, 2014, C.D., a fourteen-year-old runaway, lived with Hart at

      various locations in Evansville. During this time, Hart gave someone

      methamphetamine in exchange for the use of a motel room and sold

      methamphetamine from his car and at multiple residences. On July 19, police

      picked up C.D. C.D. tested positive for methamphetamine, Xanax, marijuana,

      and synthetic marijuana. Evansville Police Detective Tony Mayhew

      interviewed C.D. regarding her prior whereabouts.


[3]   Based on what C.D. told him, Detective Mayhew obtained a search warrant for

      Hart’s vehicle. On July 24, police stopped Hart’s vehicle based on Detective

      Mayhew’s warrant. The officer found a digital scale, a cigarette case containing




      1
          Ind. Code § 35-48-4-1.1(a)(2) (2014).
      2
          Ind. Code § 35-48-4-6(a) (2014).
      3
          Ind. Code § 35-48-4-8.3(a)(1) (2014).
      4
          Ind. Code § 35-50-2-8(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-472 | November 10, 2015   Page 2 of 9
      baggie corners and tweezers, a glass pipe with residue, and small baggies with

      what he believed were drugs. Testing of the substances in the baggies revealed

      7.16 grams of methamphetamine, two tablets of methadone, three tablets of

      hydrocodone, and five tablets of Tramadol.


[4]   The State charged Hart with Level 3 felony dealing in methamphetamine, Level

      6 felony possession of a narcotic drug, Class A misdemeanor possession of

      paraphernalia, and Level 6 felony possession of a legend drug. 5 It alleged Hart

      was an habitual offender. A jury found Hart guilty of all charges except Level 6

      felony possession of a legend drug, on which the trial court directed a verdict.

      The jury concluded Hart was an habitual offender based on his prior

      convictions of Class D felony failure to return to lawful detention in 2002 and

      Class C felony possession of a controlled substance in 2005.


[5]   The trial court entered convictions and sentenced Hart to concurrent sentences

      of fifteen years for Level 3 felony dealing in methamphetamine, two and a half

      years for Level 6 felony possession of a narcotic, and one year for Class A

      misdemeanor possession of paraphernalia. Based on his adjudication as an

      habitual offender, the trial court enhanced Hart’s sentence by twenty years for

      an aggregate sentence of thirty-five years.




      5
          Ind. Code § 35-43-10-3(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-472 | November 10, 2015   Page 3 of 9
                                      Discussion and Decision
[6]   Hart proceeds in his appeal pro se. 6 Pro se litigants are held to the same

      standards as licensed attorneys and are required to follow procedural rules.

      Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.


[7]   We begin our review of a claim of ineffective assistance of counsel with a strong

      presumption “that counsel rendered adequate assistance and made all

      significant decisions in the exercise of reasonable professional judgment.” Ward

      v. State, 969 N.E.2d 46, 51 (Ind. 2012) (internal citation omitted). Trial counsel

      has wide latitude in selecting trial strategy and tactics, which will be subjected

      to deferential review. Id. “[A] defendant must offer strong and convincing

      evidence to overcome this presumption.” Saylor v. State, 765 N.E.2d 535, 549

      (Ind. 2002).


[8]   An ineffective assistance challenge requires a defendant to establish both

      deficient performance and resulting prejudice. Pontius v. State, 930 N.E.2d

      1212, 1219 (Ind. Ct. App. 2010), trans. denied. Performance is deficient when

      trial counsel’s representation falls below an objective standard of reasonableness

      causing errors sufficiently serious to amount to a denial of the defendant’s Sixth

      Amendment right to counsel. Wesley v. State, 788 N.E.2d 1247, 1252 (Ind.

      2003). Prejudice is established when “there is a reasonable probability that, but




      6
       When he filed his appeal, Hart had counsel, who filed an appellate brief. Counsel withdrew and Hart was
      granted permission to file a pro se brief.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-472 | November 10, 2015        Page 4 of 9
       for counsel’s unprofessional errors, the result of the proceeding would be

       different.” Id. If defendant does not establish prejudice, we need not evaluate

       trial counsel’s performance. Pontius, 930 N.E.2d at 1219.


[9]    Demonstrating ineffective assistance of counsel often requires “going beyond

       the trial record to show what the investigation, if undertaken, would have

       produced,” Slusher v. State, 823 N.E.2d 1219, 1223 (Ind. Ct. App. 2005),

       because the prejudice prong is satisfied only when there is a reasonable

       probability the outcome would have been affected by the error. Id. However,

       when such a challenge is raised on direct appeal, we are limited to a review of

       the trial record. Pontius, 930 N.E.2d at 1219. Additionally, Hart’s direct appeal

       of his claim of ineffective assistance of counsel precludes raising the issue again

       if he pursues post-conviction relief. See Conner v. State, 711 N.E.2d 1238, 1244

       (Ind. 1999) (“when this Court decides an issue on direct appeal, the doctrine of

       res judicata applies, thereby precluding its review in post-conviction

       proceedings”).


                                             Motion to Suppress

[10]   Hart argues his trial counsel was ineffective because he did not file a motion to

       suppress the evidence found in Hart’s car. He claims the motion to suppress

       would have been successful because “the information [used to justify the search

       warrant] was stale and hearsay changed [sic] information from original

       statement given to police officer while under the influence of several different

       drugs that Detective used to get a search warrant.” (Br. of Appellant at 6.)

       However, Hart does not point to evidence that suggests C.D. was intoxicated at
       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-472 | November 10, 2015   Page 5 of 9
       the time she gave her statement to Detective Mayhew nor did he cite authority

       holding five-day-old information was stale, such that a motion to suppress

       would have been successful.


[11]   Passage of time between the information provided for a search warrant and the

       date the search warrant is executed does not make the evidence stale if there is

       evidence of ongoing criminal activity. See Mehring v. State, 884 N.E.2d 371,

       378-79 (Ind. Ct. App. 2008) (holding evidence ten months and nineteen days

       old was not stale because the evidence was one of an ongoing crime), reh’g

       denied, trans. denied. C.D. told Detective Mayhew on July 19 that she rode in

       Hart’s car from July 15 to July 19, during which time he sold

       methamphetamine multiple times. Hart has not demonstrated the motion, if

       made, would have been granted. Nor has he demonstrated that the granting of

       such motion would have changed the outcome of his case because there was

       sufficient independent evidence to prove he committed his crimes, such as

       C.D.’s testimony and Hart’s own admissions. See Slusher, 823 N.E.2d at 1223

       (Ind. Ct. App. 2005) (ineffective assistance of counsel claim not successful when

       defendant cannot demonstrate that, but for counsel’s error, the outcome of the

       proceedings would have been different).


                                              Habitual Offender

[12]   The version of Ind. Code § 35-50-2-8(b) effective at the time of Hart’s crimes

       states:

                       (b) A person convicted of murder or of a Level 1 through
                       Level 4 felony is a habitual offender if the state proves
       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-472 | November 10, 2015   Page 6 of 9
                       beyond a reasonable doubt that:(1) the person has been
                       convicted of two (2) prior unrelated felonies; and
                       (2) at least one (1) of the prior unrelated felonies is not a
                       Level 6 felony or a Class D felony.


[13]   Hart argues his trial counsel was ineffective because “[t]he State failed to prove

       the Defendant was sentenced to more than one dealing” offense and counsel

       did not object. (Br. of Appellant at 8.) The State presented evidence Hart was

       convicted of Class D felony failure to return to lawful detention in 2002 and

       Class C felony possession of a controlled substance in 2005. That is sufficient

       to prove Hart was an habitual offender. Hart has not demonstrated his trial

       counsel was ineffective because counsel would have been unsuccessful in

       making such an objection. See Slusher, 823 N.E.2d at 1223 (Ind. Ct. App. 2005)

       (ineffective assistance of counsel claim not successful when defendant cannot

       demonstrate that, but for counsel’s error, the outcome of the proceedings would

       have been different).


                                                   Sentencing

[14]   Hart argues his trial counsel was ineffective “for not objecting to the trial courts

       [sic] enhancement of Defendants [sic] sentence being over the advisory.” (Br.

       of Appellant at 9.) He claims the trial court erred because it did not consider

       mitigating circumstances such as Hart’s “completion of college, a certificate in

       construction builders trade, Defendant was employed, Defendant pays child

       support on three of his four children, Defendant is serv-safe certified, Defendant

       hasn’t had a felony conviction in over (9) years, [and] the Defendant showed

       remorse.” Id. He also claims the trial court “mis-used the Defendants [sic]
       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-472 | November 10, 2015   Page 7 of 9
       prior criminal history by not using it as a whole but individually naming off (13)

       charges which (9) of the (13) was [sic] misdemeanors and (7) of the (13) was

       [sic] over (10) year old.” Id.


[15]   The trial court is not required to find mitigating factors or give them the same

       weight that the defendant does. Flickner v. State, 908 N.E.2d 270, 273 (Ind. Ct.

       App. 2009). However, a court abuses its discretion if it does not consider

       significant mitigators advanced by the defendant and clearly supported by the

       record. Anglemyer, 868 N.E.2d at 490. Once aggravators and mitigators have

       been identified, the trial court has no obligation to weigh those factors against

       each other. Id. at 491.


[16]   Further, Hart has not demonstrated his trial counsel was ineffective during his

       sentencing hearing; the trial court could consider not only counsel’s argument

       but also the information in the Pre-Sentencing Investigation, and the trial court

       was not required to weigh the aggravators and mitigators as Hart does.

       Therefore, we conclude the outcome at trial would not have been different but

       for counsel’s alleged errors. See Slusher, 823 N.E.2d at 1223 (Ind. Ct. App.

       2005) (ineffective assistance of counsel claim not successful when defendant

       cannot demonstrate that, but for counsel’s error, the outcome of the

       proceedings would have been different).


                                                Conclusion
[17]   Hart has not demonstrated his trial counsel was ineffective because counsel did

       not file a motion to suppress, object to his adjudication as an habitual offender,

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-472 | November 10, 2015   Page 8 of 9
       or object to an “enhanced” sentence. Accordingly, we affirm his convictions

       and sentences.


[18]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CR-472 | November 10, 2015   Page 9 of 9
