MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                Sep 18 2015, 9:19 am
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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
CaNon Harper                                             Gregory F. Zoeller
Carlisle, Indiana                                        Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

CaNon Harper,                                            September 18, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         10A05-1407-PC-343
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,
                                                         The Honorable Daniel E. Moore,
Appellee-Plaintiff.                                      Judge

                                                         Trial Court Cause No.
                                                         10C01-1306-PC-10



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015   Page 1 of 13
[1]   CaNon Harper, pro se, appeals the denial of his petition for post-conviction

      relief. He raises several issues for our review, which we consolidate and restate

      as whether the post-conviction court erred in denying his petition for relief. We

      affirm.


                                      Facts and Procedural History

[2]   The relevant facts as discussed in Harper’s direct appeal follow:

              In November of 2008, Officer Jones and Officer H[a]rrod of the Clark
              County Sheriff’s Department noticed a vehicle without a license plate
              light. Before the officers could conduct a traffic stop, the vehicle
              pulled in to the parking lot of a Bel-Air Motel and parked, so the
              officers followed and parked in the parking lot. Two men exited the
              vehicle. The passenger, Adrian Porch, was approaching a motel room,
              room 120, while carrying a bag that appeared to be a purse. The
              driver, Harper, stood near the driver’s door of the vehicle. Before
              Porch could enter the motel room, a woman inside, Chanel Brown,
              slammed the room door. Officer Jones asked Porch to return to the
              vehicle, grabbed the purse from him, and placed it on the hood of the
              vehicle. Officer Jones informed Harper of the reason he pulled in
              behind him, and Harper started his vehicle to check his license plate
              light.
              Officer Jones asked Porch if he would consent to a search of his
              person, and Porch consented. Officer Jones then asked Porch and
              Harper who owned the purse, and both men responded they did not
              own it. Harper then stated an ex-girlfriend left it in his vehicle. Officer
              Jones asked if he could search the purse, and both men consented.
              Officer Jones opened the purse and discovered forty-eight grams of
              cocaine, thirty grams of heroin, scales, razor blades, and aluminum
              foil. Officer Jones placed Porch under arrest, and Officer H[a]rrod
              attempted to place Harper under arrest. During his attempt, Harper
              physically resisted and forced Officer H[a]rrod against the wall of the
              motel. Officer H[a]rrod struck his head against the wall, and Harper
              began to flee on foot. He was apprehended before he could leave the
              parking lot.


      Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015   Page 2 of 13
              Other officers then arrived, including Officer Mobley, who discussed
              the incident with the motel’s manager. They discovered Harper had
              rented the motel room. Soon after, the manager terminated the rental
              of the room, ordered its inhabitants to leave, and gave officers consent
              to search the room. Inside the motel room, Officer Mobley discovered
              approximately three grams of heroin and a coffee grinder, blender,
              razor blade, and flour sifter. Harper was charged with dealing in
              cocaine, possession of cocaine, dealing in a narcotic drug, and
              possession of a narcotic drug, all Class A felonies; two counts of
              resisting law enforcement, battery of a law enforcement officer, and
              possession of paraphernalia, all Class A misdemeanors; and
              maintaining a common nuisance, a Class D felony.



      Harper v. State, 963 N.E.2d 653, 656-657 (Ind. Ct. App. 2012), clarified on reh’g,

      968 N.E.2d 843, trans. denied.


[3]   Six hours after Harper’s arrest, Officer Jones completed a Probable Cause

      Affidavit on Warrantless Arrest. In the affidavit, Officer Jones stated that he

      was on routine patrol at approximately 6:30 p.m. when he saw a vehicle

      without a license plate light pass his police cruiser and turn in to the parking lot

      of the Bel-Air Motel. Officer Jones pulled into the parking lot and “observed

      two black males exit the vehicle which had pulled in front of Room 120.” PCR

      Exhibit 17 at 21.


[4]   During a deposition taken on March 6, 2009, Officer Jones stated that at

      approximately 6:30 p.m. on the day of Harper’s arrest, he was on routine patrol

      when he noticed Harper’s vehicle drive past his police cruiser and turn in to the

      parking lot of the Bel-Air Motel. According to Officer Jones, the license plate

      light on Harper’s vehicle was not working, and no one could see the license


      Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015   Page 3 of 13
      plate if the light was not working. Officer Jones pulled up behind Harper’s

      vehicle and made contact with the two men who had just exited Harper’s car.

      Harper was standing closer to the car and Porch was by the motel room door.


[5]   On March 27, 2009, Harper filed a motion to suppress and argued that the

      police “exceeded the original scope of the ‘stop’ by seizing and subsequently

      searching the bag held by Mr. Porch.” Appellant’s Appendix at 57. According

      to Harper, the search and seizure of the bag violated both the state and federal

      constitutions. At the May 2009 suppression hearing, Officer Jones testified that

      he was on patrol when he observed Harper’s car drive past his police car with a

      non-working license plate light. Officer Jones followed Harper in to the parking

      lot at the Bel-Air Motel. According to Officer Jones, Harper’s vehicle was

      stopped, the officer pulled in behind it, and the “occupants were exiting the

      vehicle.” PCR Exhibit D at 93.


[6]   Following the hearing, the trial court denied Harper’s motion to suppress. On

      interlocutory appeal of the denial, Harper and Porch1 argued that the officers’

      investigative stop exceeded the boundaries imposed by Terry v. Ohio, 392 U.S. 1

      (1968). Specifically, the gravamen of their argument was that after the officers

      showed them that the license plate light was not working, the purpose of the

      stop was complete, and the officers could not further detain the two men unless




      1
          Harper and Porch filed a joint appeal of the denial of their motions to suppress evidence.


      Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015         Page 4 of 13
      something occurred during the stop that generated the necessary reasonable

      suspicion to justify a further detention.


[7]   This court, however, found Tawdul v. State, 720 N.E.2d 1211, 1217 (Ind. Ct.

      App. 1999), reh’g denied, trans. denied, to be instructive. There, we held that

      police have a limited right to briefly detain a passenger who exits the vehicle

      after it has been lawfully stopped to alleviate any concerns for officer safety.

      720 N.E.2d at 1217. We further found that “simply because the driver may

      have been independently culpable for the traffic offenses, [it] does not entitle the

      passenger to simply exit the vehicle and walk away.” Id.


[8]   Applying Tawdul to the facts of the case, we found that it was not unreasonable

      for Officer Jones to briefly detain Porch after he legally stopped Harper’s

      vehicle until he made an initial assessment of the situation. Harper v. State, 922

      N.E.2d 75, 80 (Ind. Ct. App. 2010), trans. denied. We pointed out that Officer

      Jones testified that after he pulled up behind Harper and Porch, they were both

      already outside of the car. Harper stood next to the driver’s side door, and

      Porch started walking toward the motel. Officer Jones made contact with

      Porch because he was carrying a bag, and the officer didn’t know who was in

      the motel room or what Porch was doing. Officer Jones simply asked Porch to

      come back to the car, and Porch complied with the officer’s request. The officer

      then took the duffle bag, placed it on the car, and explained to Harper and

      Porch that the license plate light was out. Based on this evidence, we

      concluded that Porch’s brief detention was not unreasonably long or intrusive.

      Id.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015   Page 5 of 13
[9]    Harper and Porch also argued that after the traffic stop had been completed and

       they had confirmed that the license plate light was out, the subsequent search of

       the duffle bag was unreasonable. However, because Porch consented to the

       search of the duffle, he and Harper could not prevail because it is well

       established that consent is a valid exception to Fourth Amendment

       requirements. Id. at 81. We therefore affirmed the denial of the motions to

       suppress. Id. at 82.


[10]   At the September 2010 trial, Officer Jones testified during direct examination

       that he made a traffic stop in the Bel-Air Motel’s parking lot. Specifically, the

       officer explained that when he and Officer Harrod pulled up behind Harper’s

       car, Harper and Porch had already exited the car, which was parked in front of

       room 120. Porch was walking towards room 120 with a bag in his hand, and

       Harper was standing by the front of the car. During cross-examination, Officer

       Jones testified that he never saw a passenger in the vehicle, that he did not

       recall actually seeing Porch physically exit the vehicle, that Porch had already

       exited the vehicle, and that Porch was walking toward the door, which was a

       short distance from the car. The officer also testified without objection that

       Porch told him that he was a passenger in Harper’s vehicle.


[11]   A jury convicted Harper of all counts, and the trial court sentenced him to forty

       years. Harper, 963 N.E.2d at 657. On direct appeal, Harper argued that the

       trial court erred in admitting evidence found in the purse because the

       warrantless search of the purse was unreasonable and violated the Indiana and

       United States Constitutions. We concluded however, that the law of the case

       Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015   Page 6 of 13
       doctrine applied because we had previously found that an exception to the

       search warrant requirement arose when both Porch and Harper verbally

       consented to a search of the purse.2 Id. at 658. We therefore concluded that the

       trial court did not err in admitting the evidence found in the purse. Id.


[12]   Harper also argued that the trial court erred in admitting evidence from the

       motel room because the search of the room violated the state constitution.

       However, we found no error because the motel manager gave the officers

       consent to search the property. Id. We further found sufficient evidence of

       constructive possession of the contraband to support his convictions. Id. at 659.

       660. Lastly, we found that the trial court did not err in instructing the jury on

       circumstantial evidence. Id. at 663.


[13]   Harper filed a petition for post-conviction relief in June 2013 and an amended

       petition in February 2014. The post-conviction court held evidentiary hearings

       in April and May 2014, and denied Harper’s petition with findings of fact and

       conclusions of law in July 2014.


                                                       Discussion

[14]   Before discussing Harper’s allegations of error, we observe that the purpose of a

       petition for post-conviction relief is to raise issues unknown or unavailable to a




       2
         “The law of the case doctrine mandates that an appellate court’s determination of a legal issue binds the
       trial court and ordinarily restricts the court on appeal in any subsequent appeal involving the same case and
       relevantly similar facts.” Hopkins v. State, 782 N.E.2d 988, 990 (Ind. 2003). A court may revisit its own prior
       decisions or those of a coordinate court, but courts should generally shy away from such review unless the
       initial decision was clearly erroneous and would work manifest injustice. Id.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015           Page 7 of 13
       defendant at the time of the original trial and appeal. Reed v. State, 856 N.E.2d

       1189, 1194 (Ind. 2006). A post-conviction petition is not a substitute for an

       appeal. Id. Further, post-conviction proceedings do not afford a petitioner a

       “super-appeal.” Id. The post-conviction rules contemplate a narrow remedy

       for subsequent collateral challenges to convictions. Id. If an issue was known

       and available but not raised on appeal, it is waived. Id.


[15]   We also note the general standard under which we review a post-conviction

       court’s denial of a petition for post-conviction relief. The petitioner in a post-

       conviction proceeding bears the burden of establishing grounds for relief by a

       preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);

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

       conviction relief, the petitioner stands in the position of one appealing from a

       negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse

       the judgment unless the evidence as a whole unerringly and unmistakably leads

       to a conclusion opposite that reached by the post-conviction court. Id. Further,

       the post-conviction court in this case entered findings of fact and conclusions

       thereon in accordance with Indiana Post-Conviction Rule 1(6). “A post-

       conviction court’s 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.” Id. In this review, we accept findings of fact unless

       clearly erroneous, but we accord no deference to conclusions of law. Id. The

       post-conviction court is the sole judge of the weight of the evidence and the

       credibility of witnesses. Id.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015   Page 8 of 13
[16]   Lastly, we note that Harper proceeds pro se. A litigant who proceeds pro se is

       held to the rules of procedure that trained counsel is bound to follow. Smith v

       Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009), trans. denied, cert. dismissed.

       One risk a litigant takes when he proceeds pro se is that he will not know how to

       accomplish all things an attorney would know how to accomplish. Id. When a

       party elects to represent himself, there is no reason for us to indulge in any

       benevolent presumption on his behalf or to waive any rule for the orderly and

       proper conduct of his appeal. Foley v. Mannor, 844 N.E.2d 494, 502 (Ind. Ct.

       App. 2006).


[17]   We review claims of ineffective assistance of counsel under the two-prong test

       established in Strickland v. Washington, 466 U.S. 668 (1984). The defendant

       must show that trial counsel’s performance fell below an objective standard of

       reasonableness based on prevailing professional norms and that there is a

       reasonable probability that, but for counsel’s errors, the result of the proceeding

       would have been different. Moody v. State, 749 N.E.2d 65, 67 (Ind. Ct. App.

       2001), trans. denied.


[18]   Counsel is afforded considerable discretion in choosing strategy and tactics, and

       we will accord those decisions deference on appeal. Wrinkles v. State, 749

       N.E.2d 1179, 1195 (Ind. 2001), cert. denied, 535 U.S.1019 (2002). Counsel’s

       performance is presumed effective, and a defendant must offer strong and

       convincing evidence to overcome this presumption. Smith v. State, 822 N.E.2d

       193, 202 (Ind. Ct. App. 2005), trans. denied. We will not speculate as to what

       may or may have not been advantageous trial strategy as counsel should be
       Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015   Page 9 of 13
       given deference in choosing a trial strategy which, at the time and under the

       circumstances, seems best. Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998).


[19]   Harper claims that trial counsel was ineffective because trial counsel failed to

       (1) support a request to suppress evidence with “new facts” that Officer Jones

       did not see Porch exit Harper’s vehicle; (2) challenge the veracity of the

       probable cause affidavit with these “new facts”; (3) cross-examine Officer Jones

       at the suppression hearing about whether he saw Porch exit Harper’s car; and

       (4) argue that Officer Jones could not have reasonably believed that Harper had

       common authority or apparent authority over the purse to consent to the search

       of the purse because he did not see Porch exit the car. Appellant’s Brief at 9. 3


[20]   At the outset, we note that Harper may not revisit the suppression of the heroin

       and cocaine evidence because this Court previously held that the suppression

       issues were governed by the law of the case. See Harper, 963 N.E.2d at 658.

       Cognizant that prior decisions cease to be law of the case where a new set of

       facts is established, see Cutter v. State, 725 N.E.2d 401, 405 (Ind. 2000), reh’g

       denied, Harper argues that when Officer Jones testified at trial that he did not

       see Porch exit the vehicle, the officer established a new set of facts, which are

       “diametrically opposed” to the prior ones. Appellant’s Brief at 10. Harper

       continues that the establishment of these facts would have permitted trial




       3
         To the extent Harper fails to cite authority or develop cogent argument on certain issues, these issues are
       waived. See Loomis v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding argument waived
       for failure to cite authority or provide cogent argument), reh’g denied, trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015          Page 10 of 13
       counsel to revisit these issues, and that trial counsel was ineffective for failing to

       do so.


[21]   Our review of the evidence reveals that Officer Jones stated in the probable

       cause affidavit that he observed two black males exit the vehicle. In addition,

       during his deposition, Officer Jones testified that he pulled up behind Harper’s

       car and made contact with the two men who had just exited it, and at the

       suppression hearing, the officer testified that the occupants were exiting the

       vehicle as he pulled in behind it, all of which supports an inference that Porch

       was a passenger in Harper’s car.


[22]   At trial, Officer Jones testified during direct examination that he made a traffic

       stop in the Bel-Air Motel’s parking lot. Specifically, the officer explained that

       when he and Officer Harrod pulled up behind Harper’s car, Harper and Porch

       had already exited the car, which was parked in front of room 120. Porch was

       walking towards room 120 with a bag in his hand, and Harper was standing by

       the front of the car. During cross-examination, Officer Jones testified that he

       never saw a passenger in the vehicle, that he did not recall actually seeing Porch

       physically exit the vehicle, that Porch had already exited the vehicle, and that

       Porch was walking toward the door, which was a short distance from the car.

       The officer also testified without objection that Porch told him that he was a

       passenger in Harper’s vehicle. In addition, the evidence reveals that when

       Officer Jones encountered the men, they were near the vehicle that the officer

       had followed into the Bel-Air Motel parking lot. Harper was standing by the



       Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015   Page 11 of 13
       driver’s side door, and Porch was only a few feet away from the car, walking

       from the direction of the car to Room 120.


[23]   Officer Jones’ probable cause statement, deposition testimony, suppression

       hearing testimony, and trial testimony support an inference that Porch was a

       passenger in Harper’s car. In addition, the location of the officer’s car in

       relation to the Bel-Air Motel and Porch’s location and movement to the motel

       room further support the inference that Porch was a passenger. We agree with

       the State that this inference is “borne out by the fact that Porch identified

       himself to Officer Jones as having been a passenger in Harper’s vehicle – a fact

       related by Officer Jones in his deposition and again at the end of trial.”

       Appellee’s Brief at 14. Therefore, even if trial counsel erred in failing to revisit

       the suppression issue, there was no prejudice to Harper where Porch admitted

       that he was a passenger in Harper’s car.


[24]   Harper also argues that appellate counsel was ineffective for failing to raise

       these same issues on appeal. However, if trial counsel was not ineffective for

       failing to raise an issue, appellate counsel did not err in failing to raise the issue

       on appeal. See Smith v. State, 792 N.E.2d 940, 945 (Ind. Ct. App. 2003)

       (explaining that if trial counsel was not ineffective for failing to raise an issue,

       appellate counsel did not err in failing to raise the issue on direct appeal), trans.

       denied. We further note that a finding that Harper was not denied the effective

       assistance of trial counsel also establishes that the alleged error was not so

       prejudicial as to constitute fundamental error. See Culver v. State, 727 N.E.2d

       1062, 1070 (Ind. 2000), reh’g denied.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015   Page 12 of 13
                                                   Conclusion

[25]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       Harper’s petition.


[26]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A05-1407-PC-343 | September 18, 2015   Page 13 of 13
