                                                               FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                        Nov 05 2012, 8:45 am
any court except for the purpose of
establishing the defense of res judicata,                           CLERK
collateral estoppel, or the law of the case.                      of the supreme court,
                                                                  court of appeals and
                                                                         tax court




ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                   GREGORY F. ZOELLER
Public Defender of Indiana                         Attorney General of Indiana

JEFFREY R. WRIGHT                                  GARY R. ROM
Deputy Public Defender                             Deputy Attorney General
Indianapolis, Indiana                              Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

STEVEN E. MILES, a/k/a ROBERT DUTCHER,             )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
               vs.                                 )   No. 49A02-1204-PC-310
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )


                      APPEAL FROM THE MARION SUPERIOR COURT
                             The Honorable Lisa F. Borges, Judge
                      The Honorable Stanley E. Kroh, Master Commissioner
                               Cause No. 49G04-0701-PC-8769


                                        November 5, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                             Case Summary

          Appellant-Petitioner Steven E. Miles a/k/a Robert Dutcher (“Miles”)1 appeals the

denial of his petition for post-conviction relief, which challenged his conviction following his

plea of guilty to Forgery, as a Class C felony.2 He presents the sole issue of whether he was

denied the effective assistance of counsel. We affirm.

                                    Facts and Procedural History

          On January 22, 2007, the State charged Miles with Forgery, as a Class C felony. On

June 6, 2007, the State and Miles having reached a plea agreement, Miles appeared for a

guilty plea hearing. At that hearing, the State presented a factual basis for the conviction:

          [O]n or about January 17, 2007, at approximately 12:45 PM, Officer Joshua
          Fritsche of the Indianapolis Metropolitan Police Department was working off
          duty employment as a security or risk management employee for the Kroger
          located at 4445 East 10th Street. At that time he was advised by an employee
          by the name of Carmen Jennings that a white male was attempting to cash a
          check that she believed was no good and did not believe the man matched the
          picture on the driver’s license presented to her. After Joshua Fritsche arrived
          at the customer service desk, he observed the check and he observed that the
          National City logo was on the incorrect place on the check and he advised Ms.
          Jennings that the check was no good. The check was also ran through their
          check system where it was declined, indicating that it was possibly a fraudulent
          check. The check was made out to a Mr. Steven Miles on the checking
          account of a “Best Exteriors,” and the driver’s license did match that of the
          name of Steven Miles. At that time the check was declined. The Defendant
          left the store and a short time later the Defendant was stopped by Officer
          Fritsche and other officers that were called to assist. At that time he was
          placed into custody, and shortly thereafter Mr. Miles did indicate that he did
          know the check was not a valid account and did not have authorization to cash
          that check, and all these events did occur in Marion County.

1
 According to a handwritten letter to the trial court, signed “Robert R. Dutcher,” the appellant’s birth name is
Robert R. Dutcher, but he was sentenced under the alias “Steven Miles” and the abstract of judgment and all
records of the Indiana Department of Correction use the alias. (App. 61.)
2
    Ind. Code § 35-43-5-2.

                                                       2
(Guilty Plea Tr. 6-7.) Miles pled guilty and was sentenced to five years imprisonment, with

two years suspended to probation. The terms of the agreement allowed Miles to be placed in

a Community Corrections program for the executed portion of his sentence.                Miles

cooperated with the Indianapolis Metropolitan Police by giving a clean-up statement

regarding at least ten other forgery investigations; pursuant to an oral agreement with Miles’s

counsel, Benjamin Jaffe (“Jaffe”), the State declined to prosecute Miles in any of those cases.

       On May 27, 2009, Miles filed a pro-se Petition for Post-Conviction Relief. On

November 22, 2010, by counsel, Miles filed an amended petition, alleging that his guilty plea

counsel had been ineffective by overlooking a defense of an illegal search.

       Evidentiary hearings were conducted on April 26, 2011 and June 7, 2011.

Indianapolis Metropolitan Police Department Officer Steven Staal testified that he had

assisted Officer Fritsche in a vehicle stop involving Miles, but lacked any independent

recollection of a search or the surrounding circumstances. Officer Fritsche likewise testified

that he lacked recollection of a search involving Miles. Jaffe testified that he had limited

recollection of his discussions with Miles, but believed Miles had “thought we should have

pursued a suppression issue.” (Tr. 21.) According to Jaffe, he would have as a general

practice advised a client to take a plea only when “we can’t beat the [current] case” and “take

care of all these things coming down the pike.” (Tr. 24.)

       On March 23, 2012, the post-conviction court entered its Findings of Fact and

Conclusions of Law denying Miles post-conviction relief. This appeal ensued.

                                  Discussion and Decision

                                              3
       When Miles presented the forged check at Kroger, he was not immediately arrested;

rather, he was arrested after a traffic stop and search of his wallet. In his Amended Petition

for Post-Conviction Relief, Miles alleged his counsel was ineffective for “overlooking the

defense that Officer Fritsche lacked Miles’ consent or the consent of a person with actual or

apparent authority to consent, or any other recognized exception to the warrant requirement,

to search Miles’ wallet.” (App. 71.)

       Miles had the burden of establishing his grounds for relief by a preponderance of the

evidence. Ind. Post-Conviction Rule 1(5). A petitioner appealing from the denial of post-

conviction relief stands in the position of one appealing from a negative judgment. Fisher v.

State, 810 N.E.2d 674, 679 (Ind. 2004). Thus, the decision will be disturbed as being

contrary to law only if the evidence is without conflict and leads to but one conclusion, and

the trial court has reached the opposite conclusion. Ben-Yisrayl v. State, 729 N.E.2d 102,

105 (Ind. 2000).

       Ineffectiveness of counsel claims are evaluated under the standard of Strickland v.

Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel,

a petitioner must show both deficient performance and resulting prejudice. Williams v. State,

706 N.E.2d 149, 154 (Ind. 1999). A deficient performance is a performance which falls

below an objective standard of reasonableness. Id. Prejudice exists when a claimant shows

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694.

       A post-conviction claim challenging a conviction pursuant to a guilty plea is examined


                                              4
under Segura v. State, 749 N.E.2d 496 (Ind. 2001). Segura categorizes two main types of

ineffective assistance of counsel cases: (1) failure to advise the defendant on an issue that

impairs or overlooks a defense, and (2) an incorrect advisement of penal consequences.

Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). In order to set aside a conviction because

of an attorney’s failure to raise a defense, a petitioner who has pled guilty must establish that

there is a reasonable probability that he or she would not have been convicted had he or she

gone to trial and used the omitted defense. Segura, 749 N.E.2d at 499 (citing State v. Van

Cleave, 674 N.E.2d 1293, 1306 (Ind. 1996)).

       Miles contends that, had counsel pursued a motion to suppress under the Fourth

Amendment and Article 1, Section 11 of the Indiana Constitution, certain evidence against

him would have been excluded. Specifically, he claims that the State could not have offered

into evidence a check and signature stamp that were obtained from his wallet and coat

pocket, respectively. He further asserts, without developing a corresponding argument, that

his confession would have been inadmissible.

       In Helton v. State, 907 N.E.2d 1020, 1023 (Ind. 2009), our Indiana Supreme Court

categorized Helton’s claim that he would not have plead guilty had counsel pursued a motion

to suppress certain evidence to be one of an “overlooked defense.” The Court recognized the

petitioner’s burden as that of “proof of a reasonable probability that he would have succeeded

at trial if a motion to suppress had been made and sustained.” Id. at 1024.

       For purposes of discussion, the Court assumed without deciding that a suppression

motion would have been granted. Id. at 1023. However, the Court observed that the State is


                                               5
not required to introduce the subject contraband to obtain a conviction for dealing or

possession, and the exclusion of seized items in Helton’s case would not have foreclosed

prosecution and conviction based on other evidence. Id. at 1024. The Court reiterated that

Helton bore the burden of proof at his post-conviction evidentiary hearing: “It was thus

incumbent on Helton – not the State – to show there was a reasonable probability of

insufficient evidence if a suppression motion had been granted.” Id. at 1024-25.

       Consistent with the reasoning of Helton, Miles bore the burden of showing a

reasonable probability of insufficient evidence to convict him of forgery if a suppression

motion had been granted.     At the post-conviction hearing, Miles did not elicit evidence

designed to explore the relative strength or weakness of the State’s case against him absent

the seized items. However, the post-conviction record, including the guilty plea transcript

admitted as an exhibit, indicates that exclusion of items seized from Miles would not have

foreclosed his prosecution. The State would have been free to offer relevant testimony and

produce circumstantial evidence.

       For example, the Kroger clerk encountered Miles personally, compared his appearance

with the proffered photographic identification, and examined the check Miles sought to cash.

Her observations, and the rejection of the check by Kroger’s computer, led her to question

both the authenticity of the check and Miles’s identification. She called Officer Fritsche,

who examined the suspect check and detected a wrongly-positioned bank logo, a badge of

forgery. Police investigation subsequently revealed that the alleged maker of the check, Best

Exteriors Incorporated, no longer had an account with the named bank.


                                             6
       Also, several other individuals were allegedly involved with Miles in a forgery

scheme of some magnitude. The suppression of the contents of Miles’s wallet would not

have precluded testimony from one or more of the alleged accomplices.

       In short, Miles has not shown a reasonable probability that he would have prevailed at

trial. Where the prejudice issue is dispositive, we need not address alleged deficiency in

counsel’s performance. See id. at 1023. Thus, we do not address the performance prong of

Strickland here.

                                        Conclusion

       The post-conviction court properly denied Miles post-conviction relief.

       Affirmed.

RILEY, J., and CRONE, J., concur.




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