                                                                              Oct 17 2013, 5:50 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision 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.


ATTORNEYS FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

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

JOHN PINNOW                                         JOSEPH Y. HO
Deputy Public Defender                              Deputy Attorney General
Indianapolis, Indiana                               Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

WILLIAM J. EISELE,                                  )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )       No. 51A01-1304-PC-154
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                      APPEAL FROM THE MARTIN CIRCUIT COURT
                           The Honorable Lynne E. Ellis, Judge
                              Cause No. 51C01-1102-PC-12



                                         October 17, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       William J. Eisele (“Eisele”) appeals from the denial of his petition for post-

conviction relief (“PCR”) following his conviction for burglary1 as a Class A felony. He

raises one issue on appeal, which we restate as whether Eisele was denied effective

assistance of counsel when his trial counsel failed to file a motion to suppress prior to

Eisele’s guilty plea.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       On April 14, 2004, Eisele pleaded guilty to the burglary described below. On June

25, 2003, John Lindsey (“John”) and his wife Terri Lindsey (“Terri”) drove to the

Loogootee, Indiana, home of John’s brother, Kevin Lindsey (“Kevin”). There, they

observed an older model Ford Bronco parked in Kevin’s driveway. The Bronco was dark

blue and the front of the Bronco bore an airbrushed plate that depicted a skull and

crossbones. Pet’r’s Ex. 1 at 19. Terri noticed a man, later identified as Eisele, come

from inside the house and place two items in the Bronco. Eisele retrieved a yellow rag

from the Bronco and used it to wipe the handles to the side door of the house and

returned inside the house. Pet’r’s Ex. 8 at 2. John entered the house and saw Eisele

bending over a television, trying to unplug it. Seeing John, Eisele grabbed a pair of

scissors, lunged at John, and cut him with the scissors. Eisele chased John out of the

house, entered the Bronco, and fled the scene.      John and Terri called the sheriff’s

department and reported the burglary.

       The following day, June 26, 2003, Deputy Sheriff Jeff Nonte (“Deputy Nonte”) of

       1
           See Ind. Code § 35-43-2-1(2).

                                           2
the Martin County Sheriff’s Department, filed an affidavit for a search warrant to search

a mobile home located at 111 Poplar Street in Loogootee, Indiana, and a blue Ford

Bronco bearing an airbrushed skull and crossbones license plate on the front of the

vehicle. Deputy Nonte stated that Sheriff Tony Dant (“Sheriff Dant”) had found the

Bronco, which matched the description of the vehicle present at the scene of the burglary,

parked in the driveway of the mobile home. Deputy Nonte’s affidavit also stated:

       Terri Lindsey who observed the Bronco at the Lindsey residence has
       identified the [B]ronco at 111 Poplar as the vehicle involved in the incident
       at the Lindsey residence on the Loogootee-Dover Hill [R]oad. The vehicle
       is parked as if it belongs at the residence where it is located. Your affiant
       believes it reasonable that the vehicle or the residence where it is located
       contains items stolen from the Lindsey residence.

Pet’r’s Ex. 7 at 3. The trial court, finding probable cause, issued a search warrant that

same day authorizing and ordering the sheriff’s department to search the Bronco and the

mobile home for evidence connected to the burglary. In the Bronco, deputies found a

yellow rag and a pair of scissors. From the mobile home, deputies recovered a black bag

containing jewelry and money, as well as clothing that appeared to be what Eisele was

wearing during the burglary. Inside the mobile home, Eisele made a statement to Sheriff

Dant that everything the police were looking for was in the black bag. Tr. at 29.

       On June 30, 2003, Deputy Nonte filed an affidavit for probable cause stating his

belief that Eisele was the person who committed the burglary. The affidavit reflected that

Sheriff Dant had searched the mobile home and found the black bag full of money and

jewelry, and that Kevin’s wife, Cindy, later identified the recovered items as belonging to

her family. Pet’r’s Ex. 8 at 3. Additionally, the affidavit stated that, during the search of


                                             3
the mobile home, Eisele admitted to Sheriff Dant that everything they were looking for

was in the black bag. Id. The State charged Eisele with one count of burglary resulting

in bodily injury, a Class A felony. Appellant’s App. at 17-18.

        Debra Smith (“Smith”),2 who represented Eisele at trial, did not file a motion to

suppress either Eisele’s incriminating statement or the evidence found in the mobile

home. Instead, on April 14, 2004, almost ten months after the burglary, Eisele appeared

in court and pleaded guilty as charged. Id. at 47-49. Pursuant to the plea agreement, the

State agreed to seek a sentence no longer than the presumptive thirty-year sentence. Id.

at 47-49. The trial court accepted the plea agreement, entered judgment, and following a

sentencing hearing, sentenced Eisele to thirty years. Id. at 68-73. Eisele did not take a

direct appeal.

        On February 2, 2011, Eisele filed a pro se PCR petition. About one year later,

Eisele, now represented by public defender John Pinnow, filed an amended PCR petition.

In the petition, Eisele alleged that he “was denied the effective assistance of trial counsel

when counsel did not move to suppress evidence obtained from the search of the

residence and [Eisele’s] subsequent incriminating statements.” Appellant’s App. at 139.

He argued that the affidavit in support of the search warrant did not provide probable

cause to search the mobile home because it contained no information connecting the

mobile home to the Bronco. Likewise, Eisele maintained that the good faith exception

could not save the affidavit’s shortcomings. Id. at 140. Eisele asserted that, but for

        2
         At the time of Eisele’s conviction, his attorney’s name was Debra Smith. Although Smith
changed her name to Herthel by the time of the post-conviction hearing, for ease of reference we will call
her Smith throughout. Tr. at 15.

                                                    4
Smith’s error, “[t]here is a reasonable probability [Eisele] would not have pled guilty and

would have insisted on going to trial.” Id. at 141. Additionally, Eisele suggested that a

motion to suppress would have been granted and that, without that evidence, the State

would have had difficulty at trial connecting him to the burglary. Appellant’s App. at

141.

       The post-conviction court held a hearing on Eisele’s petition. Smith testified that,

through a discovery motion, she had obtained a copy of Deputy Nonte’s probable cause

affidavit and the search warrant, which revealed that the State had an adequate basis for

the warrant. Smith first testified that, based on the following factors, it was her belief

that a motion to suppress the evidence found in the mobile home would fail: (1) the

police located the Bronco with the airbrushed skull and crossbones on the license plate;

(2) two witnesses could identify the Bronco as having been at the scene of the burglary;

and (3) it is reasonable to believe that the driver of the Bronco would not leave stolen

jewelry in the vehicle. Tr. at 16-18. As to why she did not file a motion to suppress

Eisele’s incriminating statement, Smith testified that “whenever [Sheriff Dant] entered

the [mobile] home any statement that [Eisele] would make after that, that was his own

voluntary admission. Uh, I could not feel that that could be suppressed or that it would

be suppressed.” Id. at 17. Smith also testified regarding having advised Eisele about

entering a guilty plea. Id. at 18.

       Sheriff Dant also testified at the PCR hearing and said that the Bronco “was

backed into the driveway” of the mobile home and bore the skull and crossbones license

plate described by John and Terri. Id. at 27. Sheriff Dant noted that, pursuant to his

                                            5
normal policy, he would “have Mirandized Mr. Eisele before [he] took a statement from

him,” and that Eisele gave a statement that “everything [the police] were looking for was

in this [black] bag.” Id. at 29.

         Eisele admitted at the PCR hearing that he owned the Bronco, that he was driving

the Bronco on the day of the burglary, that the Bronco was parked at the mobile home,

and that he was renting the mobile home. Id. at 33, 36, 37. Nevertheless, Eisele claimed

that had Smith prevailed in a motion to suppress his statement and the evidence recovered

from the mobile home, he would not have pleaded guilty and would have proceeded to

trial.   Id. at 33-34.     Eisele did not present any witnesses to testify about the

reasonableness of Smith’s conduct.      During closing argument, Eisele conceded that

evidence “tie[d] the Bronco to the scene of the burglary.” Id. at 40.

         The post-conviction court entered its findings of fact and conclusions thereon

denying Eisele’s PCR petition. He now appeals. Additional facts will be provided as

necessary.

                             DISCUSSION AND DECISION

         A 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) (citing 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. Id. 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

                                             6
findings of fact and conclusions of law 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. (quotation omitted).

       On March 14, 2013, the post-conviction court issued its findings of facts and

conclusions thereon and, citing to our Supreme Court’s reasoning in Helton v. State, 907

N.E.2d 1020, 1023 (Ind. 2009), denied Eisele’s PCR petition. The post-conviction court

reasoned that Eisele was not prejudiced by Smith’s representation because the State could

have successfully prosecuted Eisele even without the evidence that Eisele sought to

suppress. Appellant’s App. at 169-70.

       Helton is on all fours with the instant case. In Helton, the petitioner alleged that

defense counsel rendered ineffective assistance by failing to move to suppress evidence

prior to his guilty plea. 907 N.E.2d at 1021. The Supreme Court found that petitioner

did not establish what other evidence of guilt was or was not available. Id. Therefore, he

failed to meet his burden of proof to establish that he was prejudiced by counsel’s alleged

omission. Id.

       In order to establish a claim of ineffective assistance of counsel, a defendant must

demonstrate that counsel performed deficiently and the deficiency resulted in prejudice.

Helton, 907 N.E.2d at 1023 (citing Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008)).

Noting this standard, Eisele argues that the post-conviction court failed to address

whether Smith’s performance was deficient; he therefore dedicates a considerable portion

of his brief to analyzing the adequacy of Smith’s performance. Appellant’s Br. at 9. We

                                            7
need not do the same. The United States Supreme Court has stated:

       Although we have discussed the performance component of an
       ineffectiveness claim prior to the prejudice component, there is no reason
       for a court deciding an ineffective assistance claim to approach the inquiry
       in the same order or even to address both components of the inquiry if the
       defendant makes an insufficient showing on one. In particular, a court need
       not determine whether counsel’s performance was deficient before
       examining the prejudice suffered by the defendant as a result of the alleged
       deficiencies. The object of an ineffectiveness claim is not to grade
       counsel’s performance. If it is easier to dispose of an ineffectiveness claim
       on the ground of lack of sufficient prejudice . . . that course should be
       followed.

Strickland v. Washington, 466 U.S. 668, 697 (1984). Here, our decision rests on a

finding of no prejudice.

       Eisele’s claim is that Smith’s failure to file a motion to suppress was ineffective

assistance of counsel. “In order to prove prejudice stemming from ineffective assistance,

a defendant must show a reasonable probability that, but for counsel’s unprofessional

errors, the result of his criminal proceeding would have been different.” Helton, 907

N.E.2d at 1023 (citing Strickland, 466 U.S. at 694). A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. For purposes of this

discussion, we assume without deciding that a suppression motion would have been

granted. Id. We therefore assume that: the warrant affidavit was insufficient to establish

probable cause for the mobile home; Eisele’s incriminating statement and the items

recovered from his mobile home were the product of an unlawful search; and the seized

evidence would have been inadmissible under the exclusionary rule. This alone is not

sufficient to establish ineffective assistance of counsel. As our Supreme Court stated in

Helton, “A petitioner alleging ineffective assistance of counsel in overlooking a defense

                                            8
leading to a guilty plea must show a reasonable probability that, had the defense been

raised, the petitioner would not have pleaded guilty and would have succeeded at trial.”

Id. For reasons explained below, Eisele has failed to carry his burden of proof.

       At his post-conviction hearing, Eisele stated that had the evidence from the mobile

home been suppressed, he would not have pleaded guilty. Tr. at 33. Eisele, however,

provided no evidence as to why that would have been the case. At the post-conviction

hearing, Eisele was asked, “What effect did the evidence obtained from the mobile home

and your statement have in your decision to plead guilty?” Id. Eisele did not contend

that without the evidence from the mobile home there would be insufficient evidence to

convict him. Instead, he responded:

       [Smith] advised me that if I was to go ahead and try to fight it that they
       were going to give me an additional twenty years on top of (inaudible) for
       that thirty year cap. And basically advised me not to do so. She didn’t
       really tell me not to do it . . . she just told me that and it just kind of scared
       me into doing it.

Id. Eisele’s trial counsel, Smith, testified that she talked with Eisele about pleading

guilty saying: “[A]s to [Eisele] pleading guilty I had to consider his past criminal record,

the seriousness of the crime, uh, pros and cons of going to a trial. I mean, you know,

once we go ahead get a jury, uh, he was facing, he could have had a presumptive sentence

of thirty, he could have been facing up to fifty years.” Id. at 18. While Eisele might have

been willing to take a chance that he would have been acquitted, his considerations for

pleading guilty were not merely about the evidence against him, but instead centered on

the fifty-year sentence he might have received if convicted.

       Furthermore, had Eisele decided to go to trial, the outcome would have likely been

                                               9
the same. To obtain a conviction for burglary, the State is not required to introduce the

items that were stolen. Helton, 907 N.E.2d at 1024. The exclusion of the jewelry and of

Eisele’s statement would not have foreclosed the prosecution and conviction. Here, the

facts of the burglary could have been established through witness testimony and

circumstantial evidence. Id. See also Baker v. State, 968 N.E.2d 227, 230 (Ind. 2012)

(“‘Circumstantial evidence alone is sufficient to sustain a burglary conviction.’”). Terri

and John could have testified that, upon arriving at the home of Kevin, they saw in the

driveway an older model, blue Ford Bronco that bore a front plate that was an airbrushed

skull and crossbones. Terri could have testified that she saw a man leave the home, place

items in the truck, and take a yellow cloth from the Bronco and use it to wipe off the

home’s door handles. John could have testified that he entered the home and saw the

man trying to unplug Kevin’s television. The man then grabbed a pair of scissors, lunged

at and cut John, and then fled in the Bronco. Deputy Nonte obtained a search warrant,

and even Eisele concedes that probable cause supported the search of the Bronco; this

would have allowed the introduction of the yellow cloth and scissors, both of which were

found in the Bronco. Appellant’s Br. at 10 (citing Tr. at 40; Appellant’s App. at 169).

Kevin and Cindy could have testified regarding the items stolen from their home. During

the post-conviction hearing, Eisele testified that the Bronco was his, a fact that the State

could have proven at trial. Tr. at 36. He also testified that he drove the Bronco the day

of the burglary. Id. The record before us contains no pertinent discovery motions or

witness lists, and no other materials that suggest what other evidence could have been

introduced at trial. Eisele produced no evidence regarding what, if any, evidence he

                                            10
could have offered in his defense.

       In Helton, our Supreme Court concluded:

       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. Helton argues that without the seized contraband, “the odds
       of a better result at trial—indeed, the odds of the charges being dismissed
       prior to trial—would have been much better than negligible.” He gives us
       no evidence to establish this claim. Perhaps if the evidence seized from
       Helton’s home had been excluded, the chances of a better outcome would
       have been greater. But in the absence of any showing that the State’s other
       evidence would have been insufficient, we are unable to evaluate the
       likelihood of acquittal or dismissal, and Helton has not shown a reasonable
       probability, or any probability at all, that he would have prevailed at trial.

907 N.E.2d at 1024-25. Like Helton, Eisele has not shown any probability that he would

have prevailed at trial. Finding that Eisele was not prejudiced by his trial counsel’s

representation, the judgment of the post-conviction court denying Eisele post-conviction

relief is affirmed.

       Affirmed.

ROBB, C.J., and RILEY, J., concur.




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