      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                  FILED
      this Memorandum Decision shall not be                              Apr 08 2020, 8:55 am

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


      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Amy E. Karozos                                            Curtis T. Hill, Jr.
      Indiana State Public Defender                             Attorney General of Indiana
      J. Michael Sauer
      Deputy Public Defender                                    Tyler G. Banks
                                                                Deputy Attorney General
      Indianapolis, Indiana
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Marcus Conner,                                            April 8, 2020
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                19A-PC-2106
              v.                                                Appeal from the Elkhart Superior
                                                                Court
      State of Indiana,                                         The Honorable George W.
      Appellee-Plaintiff                                        Biddlecome, Senior Judge
                                                                Trial Court Cause No.
                                                                20D03-1701-PC-5



      May, Judge.

[1]   Marcus Conner appeals the post-conviction court’s denial of his petition for

      post-conviction relief. He raises two issues for our review, which we revise and


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020               Page 1 of 21
      restate as: (1) whether his trial counsel was ineffective for failing to assert his

      right to a speedy trial under the Indiana and United States Constitutions, and

      (2) whether his appellate counsel was ineffective for not arguing that there was

      insufficient evidence to demonstrate he committed his offense within 1,000 feet

      of a youth program center. We affirm.



                                Facts and Procedural History
[2]   In a memorandum decision affirming Conner’s convictions on direct appeal,

      we summarized the facts and course of proceedings in his criminal case as

      follows:


                 On September 19, 2012, Conner was arrested after he sold
                 cocaine to two confidential informants during three separate
                 controlled buys arranged by the Elkhart Police Department.
                 Conner sold the cocaine from his home, which was located
                 within 1000 feet of a youth program center. On September 24,
                 2012, the State charged Conner with three counts of Dealing in
                 Cocaine, as Class A felonies,[ 1] and Maintaining a Common
                 Nuisance, as a Class D felony.[ 2] On March 26, 2015, the State
                 moved to amend the charging information to allege that Conner
                 was a habitual offender.[ 3]




      1
          Ind. Code § 35-48-4-1 (2006).
      2
          Ind. Code § 35-48-4-13 (2001).
      3
          Ind. Code § 35-50-2-8 (2005).


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 2 of 21
        At Conner’s initial hearing, a trial date was set for March 11,
        2013.


        On the court’s own motion, and by an order dated March 8,
        2013, the trial court vacated the March 11, 2013 trial date due to
        court congestion and set a pre-trial conference for April 11, 2013
        for the purpose of selecting a new trial date. On Conner’s
        motion, the pretrial conference was continued. At a pre-trial
        conference held on May 2, 2013, the trial was rescheduled for
        July 15, 2013.


        On defendant’s motion, and by an order dated July 12, 2013, the
        trial court vacated the July 15, 2013 trial date, ‘with [Indiana
        Criminal Rule] 4 time chargeable to the Defense’ (App. 149), and
        scheduled a pre-trial conference for July 25, 2013. At the
        conference, the trial was rescheduled for August 12, 2013.


        On the State’s motion, and by an order dated July 31, 2013, the
        trial court vacated the August 12, 2013 trial date due to court
        congestion. At a pre-trial conference held September 5, 2013, the
        trial was rescheduled for January 6, 2014.


        On the court’s motion, and by an order dated January 2, 2014,
        the court again vacated the January 6, 2014 trial date due to
        court congestion and set a pre-trial conference for February 6,
        2014. At the conference, the court set the trial for March 24,
        2014.


        The State then filed two more motions to continue due to court
        congestion. By an order dated March 17, 2014, the March 24,
        2014 trial was cancelled and rescheduled for June 23, 2014. By
        an order dated June 19, 2014, the June 23, 2014 trial date also
        was vacated.



Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 3 of 21
        On July 7, 2014, Conner, acting pro se, sent to the court a
        motion for discharge under Indiana Criminal Rule 4. Conner
        was represented by counsel at the time, so the court did not
        accept the filing. At a pretrial conference held July 31, 2014, the
        cancelled June 23, 2014 trial was rescheduled for January 26,
        2014 [sic].


        On October 23, 2014, Conner submitted another pro se motion
        for discharge, which the trial court again did not accept because
        Conner was represented by counsel.


        On the State’s motion, and by an order dated January 20, 2015,
        the court rescheduled the January 26, 2015 trial due to court
        congestion and set a pre-trial conference for February 26, 2015.


        At the February 26, 2015 pre-trial conference, Conner, this time
        by counsel, filed in open court a motion for discharge under
        Indiana Criminal Rule 4. The court heard argument on the
        motion. The motion was denied, and trial was set for April 6,
        2015.


        On April 6, 2015, the day of trial, Conner’s counsel moved to
        withdraw his representation due to a conflict of interest. The trial
        was continued.


        A jury trial was held on July 20 and 21, 2015, and Conner was
        found guilty as charged. Conner admitted to being a habitual
        offender. By orders dated August 27 and 28, 2015, the trial court
        sentenced Conner to an aggregate sentence of seventy-two years.


Conner v. State, No. 20A03-1509-CR-1426, 2016 WL 3745924, slip. op. at 1-2

(Ind. Ct. App. July 13, 2016) (footnotes added).



Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 4 of 21
[3]   On direct appeal, Conner argued that he was entitled to discharge under

      Indiana Criminal Rule 4(C) because two of the trial court’s findings of court

      congestion were erroneous. Id. at 2-3. We held the number of days of delay

      chargeable to the State did not exceed 365. Id. at 5. Conner also argued the

      delay violated his constitutional right to a speedy trial, but we held the

      argument was waived because trial counsel did not raise the argument below.

      Id. at 6. We affirmed Conner’s convictions. Id.


[4]   Conner filed a petition for post-conviction relief pro se on January 23, 2017. On

      June 27, 2017, the court appointed a public defender to represent Conner, and

      Conner filed an amended petition on November 8, 2018. The amended petition

      alleged ineffective assistance of both trial counsel and appellate counsel. The

      amended petition argued Conner’s trial counsel were ineffective because they

      did not argue the delay in bringing Conner to trial violated Conner’s right to a

      speedy trial. The amended petition also argued Conner’s appellate counsel was

      ineffective for not arguing there was insufficient evidence to prove Conner sold

      cocaine within 1000 feet of a youth program center. The post-conviction court

      held a bifurcated evidentiary hearing on March 29, 2019, and May 3, 2019.


[5]   Conner’s trial attorneys, Peter Todd and Christopher Crawford, as well as

      Conner’s appellate counsel, Mari Duerring, testified at the hearing. Todd

      initially represented Conner at the trial level, but Crawford took over the

      representation of Conner following a reassignment of responsibilities among the

      Elkhart County public defenders. Crawford withdrew his representation when

      he discovered a conflict of interest, and Todd resumed his representation of

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 5 of 21
      Conner. Todd testified at the hearing on Conner’s petition for post-conviction

      relief that even though he was familiar with Criminal Rule 4 and the

      constitutional right to a speedy trial, he “didn’t contemplate in [Conner’s] case

      that that might be something [he] would file on [Conner’s] behalf.” (Tr. Vol. II

      at 10.)


[6]   Crawford testified that, while he filed a motion for discharge under Criminal

      Rule 4, he thought he did not also assert Conner’s constitutional right to a

      speedy trial because evidence was not lost as a result of the delay. Duerring

      testified she did not raise the issue of whether the State presented sufficient

      evidence to prove Conner dealt cocaine within 1,000 feet of a youth program

      center on direct appeal because she did not think the issue was as strong as the

      arguments she raised.


[7]   On August 30, 2019, the post-conviction court issued an order denying

      Conner’s petition for post-conviction relief with findings of fact and conclusions

      of law. Regarding Conner’s claim his trial attorneys were ineffective for failing

      to adequately assert his constitutional right to a speedy trial, the court found


                the issue of whether [Conner] was entitled to be discharged under
                the speedy trial provisions of the United States and Indiana
                Constitutions was raised on direct appeal and decided adversely
                to [Conner]. Accordingly, as a matter of procedure, this
                argument is res judicata and not available for review in this [post-
                conviction proceeding].




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 6 of 21
      (App. Vol. II at 134-135) (emphasis in original). The court nevertheless

      analyzed the delay from the date of Conner’s arrest to his trial and determined

      the delay was justified. The court held


              trial counsel’s performance cannot be said to have fallen below
              an objective standard of reasonableness when he chose not to
              object to the delay in this case on constitutional grounds as well
              as pursuant to Criminal Rule 4. Moreover, [Conner] has not
              demonstrated that had counsel done so, the result would have
              been different, i.e., he would have been discharged or his
              convictions would have been vacated.


      (Id. at 138.)


[8]   The court also found appellate counsel was not ineffective because Conner’s

      argument that there was insufficient evidence to show he dealt cocaine within

      1,000 feet of a youth program center was not supported by the record. The

      court made findings referencing an Elkhart Police Department officer’s

      testimony during Conner’s criminal trial that two Elkhart County Health

      Department buildings were located within 1,000 feet of Conner’s residence and

      the testimony of both Gwen Jaeger and Melanie Sizemore regarding the

      programs offered to children at each of the two Health Department buildings.



                                 Discussion and Decision
[9]   The petitioner for post-conviction relief must establish that he is entitled to relief

      by a preponderance of the evidence. Timberlake v. State, 753 N.E.2d 591, 597

      (Ind. 2001), reh’g denied, cert. denied 537 U.S. 839 (2002). “Because he is now
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 7 of 21
       appealing a negative judgment, to the extent his appeal turns on factual issues,

       [the petitioner] must convince this Court that the evidence as a whole leads

       unerringly and unmistakably to a decision opposite that reached by the post-

       conviction court.” Id. “Where the [post[-]conviction] court has entered

       findings of fact and conclusions of law, we accept the findings of fact unless

       clearly erroneous, but accord no deference [to] conclusions of law.” Turner v.

       State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans. denied. We will reverse

       the post-conviction court’s decision only if the evidence is without conflict and

       leads to a conclusion opposite that reached by the post-conviction court. Id. at

       581-82.


[10]   The Sixth Amendment to the United States Constitution provides that in all

       criminal prosecutions, a defendant is entitled “to have the assistance of counsel

       for his defense.” U.S. Const. amend. VI. Counsel’s assistance must be effective

       for this constitutional guarantee to be realized. Strickland v. Washington, 466

       U.S. 668, 686 (1984), reh’g denied. There is a strong presumption that trial

       counsel provided effective representation, and a petitioner must put forth

       compelling evidence to rebut that presumption. McCullough v. State, 973 N.E.2d

       62, 74 (Ind. Ct. App. 2012), trans. denied. “Isolated poor strategy, inexperience,

       or bad tactics does not necessarily constitute ineffective assistance of counsel.”

       Id. Rather, a petitioner must show that trial counsel’s performance was

       deficient, and the petitioner was prejudiced by the deficiency. Id. at 75.


[11]   When evaluating a defendant’s ineffective-assistance-of-counsel claim, we apply

       the well-established, two-part Strickland test. “The defendant must prove: (1)

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 8 of 21
       counsel rendered deficient performance, meaning counsel’s representation fell

       below an objective standard of reasonableness as gauged by prevailing

       professional norms; and (2) counsel’s deficient performance prejudiced the

       defendant, i.e., but for counsel’s errors the result of the proceeding would have

       been different.” Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019) (internal

       citation omitted). We also apply the Strickland test when evaluating a claim of

       ineffective assistance of appellate counsel. Hollowell v. State, 19 N.E.3d 263, 269

       (Ind. 2014). The petitioner “must show appellate counsel was deficient in his or

       her performance and that the deficiency resulted in prejudice.” Id.


            1. Performance of Trial Counsel Regarding Conner’s Right
                                  to a Speedy Trial
[12]   Conner argues his trial attorneys were ineffective because they failed to preserve

       his constitutional right to a speedy trial. The United States Constitution

       provides: “In all criminal prosecutions, the accused shall enjoy the right to a

       speedy and public trial . . . .” U.S. Const. amend. VI. Additionally, the

       Indiana Constitution provides: “Justice shall be administered freely, and

       without purchase; completely, and without denial; speedily, and without

       delay.” Ind. Const. Art. 1, sec. 12. In Barker v. Wingo, the United States

       Supreme Court announced a balancing test for courts to consider in

       determining if a criminal defendant has been deprived of the right to a speedy

       trial. 407 U.S. 514, 530 (1972). The test considers four factors: “Length of

       delay, the reason for the delay, the defendant’s assertion of his right, and

       prejudice to the defendant.” Id. We use the Barker factors to analyze speedy

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 9 of 21
       trial claims asserted under either the federal or the state constitution. Sweeney v.

       State, 704 N.E.2d 86, 102 (Ind. 1998).


[13]   Indiana Criminal Rule 4 is meant to ensure that a defendant receives a prompt

       trial, but a Criminal Rule 4 challenge is separate and distinct from a claimed

       violation of a defendant’s constitutional right to a speedy trial. Austin v. State,

       997 N.E.2d 1027, 1037 n.7 (Ind. 2013). Criminal Rule 4(A) limits the amount

       of time a defendant may remain in jail awaiting trial. A defendant may not be

       held in jail without trial for a period in excess of six months unless the

       defendant moves for a continuance, the defendant delays the trial by his own

       act, or there is not sufficient time to try the defendant because of court

       congestion or emergency. Ind. Criminal Rule 4. Similarly, Criminal Rule 4(C)

       provides that a defendant shall not be held to answer a criminal charge for a

       period greater than one year unless the defendant moves for a continuance, the

       defendant delays the trial by his own act, or there is not sufficient time to try the

       defendant because of court congestion or emergency. Id. When evaluating a

       Criminal Rule 4 motion, we count the number of days the defendant has been

       held to answer a criminal charge, discount the number of days of delay

       attributable to the defendant’s actions and court congestion, and if the total

       number of days exceeds the time period provided in the rule, grant the

       defendant relief. See Curtis v. State, 948 N.E.2d 1143, 1151 (Ind. 2011) (holding

       that “because the days that count toward the Rule 4(C) period exceed 365, the

       trial court should have granted Curtis’s motion to dismiss and discharge”).




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 10 of 21
[14]   Initially, Conner challenges the post-conviction court’s conclusion that his

       argument that he was entitled to discharge pursuant to the speedy trial

       provisions of the United States and Indiana Constitutions is barred by res

       judicata because the argument was raised on direct appeal. Conner

       acknowledges that “[i]f an issue was raised on direct appeal, but decided

       adversely to the petitioner, it is res judicata.” Reed v. State, 856 N.E.2d 1189,

       1194 (Ind. 2006). However, Conner argues we did not consider or decide

       whether Conner should have been discharged pursuant to the speedy trial

       provisions of the state and federal constitutions because we held on direct

       appeal that the challenge was waived. See Conner, slip op. at 6 (“Conner did not

       raise his constitutional claims before the trial court, either in his written motion

       for discharge or at the hearing on the motion. Issues not raised at the trial level

       are generally waived on appeal. Accordingly, Conner’s constitutional speedy-

       trial claims are forfeited.”) (internal citation omitted). Therefore, Conner

       maintains, he is not barred from arguing that he is entitled to post-conviction

       relief because his trial attorneys were ineffective in failing to preserve the issue

       for appeal. We agree that Conner’s claim is not barred by res judicata. See Reed,

       856 N.E.2d at 1195 (holding defendant’s ineffective assistance of counsel claim

       was not barred by res judicata because, although a sentencing issue was raised on

       direct appeal, counsel did not raise argument that the court could not impose

       consecutive sentences).




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 11 of 21
                                                     A. Length of Delay

[15]   Conner argues all four Barker factors weigh in his favor. He notes the delay

       from when charges were filed against him to when he was tried was 1,029

       days. 4 The length of the delay serves as a “triggering mechanism” for a

       defendant to assert his speedy trial right. Barker, 407 U.S. at 530. The tolerable

       length of a delay depends on the nature and circumstances of each case. Id. at

       530-31. Conner points to Ballentine v. State, in which our Indiana Supreme

       Court noted that facially, “and without considering other factors,” a delay of

       two-and-one-half years is “unusually long.” 480 N.E.2d 957, 959 (Ind. 1985).

       Conner also cites Logan v. State, wherein our Indiana Supreme Court observed

       that a delay of over three-and-one-half years in the defendant’s case “was

       considerable, unfortunate, and inexcusable.” 16 N.E.3d 953, 962 (Ind. 2014). 5

       Consequently, the Supreme Court held the length of the delay weighed heavily

       in Logan’s favor. Id. Therefore, Conner contends the post-conviction court

       should have weighed heavily in his favor the length of delay between when

       Conner was charged and when he was tried.


[16]   However, as the State points out, the length of the delay between when Conner

       was charged and when he was tried is not as long as the delay in some cases

       where defendants have made unsuccessful speedy-trial claims. See, e.g., Barker,




       4
        The time between charging and trial was 1,029 days. However, Conner was incarcerated for 1,034 days
       before trial because he was arrested five days before he was charged.
       5
           Conner’s case and Logan both originated in Elkhart Superior Court 3.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020              Page 12 of 21
       407 U.S. at 533 (a “well over five year[ ]” delay); O’Quinn v. Spiller, 806 F.3d

       974, 977-79 (7th Cir. 2015) (finding reasonable application of Barker when state

       court denied speedy-trial claim for forty-two-month delay); United States v.

       Oriedo, 498 F.3d 593, 598 (7th Cir. 2007) (“nearly three years”); Johnson v. State,

       83 N.E.3d 81, 87 (Ind. Ct. App. 2017) (1,579-day delay); Sickels v. State, 960

       N.E.2d 205, 221 (Ind. Ct. App. 2012) (nine-year delay), reh’g denied, aff’d on

       trans. 982 N.E.2d 1010 (Ind. 2013). But see Logan, 16 N.E.3d at 962 (finding

       “three-and-one-half-year delay” unconstitutional). Therefore, while the delay

       in bringing Conner to trial was lengthy, the delay was not so long that it

       violated Conner’s constitutional right to a speedy trial.


                                           B. Reasons for the Delay

[17]   The next factor we consider is the reasons for the delay. We look with strong

       disfavor on any attempt by the State to delay trial in order to hamper the

       defendant’s defense. Barker, 407 U.S. at 531. Purportedly neutral reasons for

       delay, such as negligence or overcrowded courts, are weighed less heavily

       against the State. Id. However, a missing witness or some other valid reason

       may fully justify delay. Id.


[18]   In Logan, the court stated “[a]though a congested court calendar weighs less

       heavily against the State, it must be viewed as the responsibility of the

       government and an impediment to a defendant’s constitutional right to a speedy

       trial.” 16 N.E.3d at 963. Conner’s trial was delayed 728 days due to court

       congestion, and Conner argues this delay should weigh against the State.

       Additionally, Conner’s trial was delayed 105 days because his trial counsel
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 13 of 21
       discovered a conflict of interest on the day of trial. Conner contends this delay

       should also be attributed to the State because the State could have determined

       there was a conflict of interest in advance of trial by reviewing the dockets of

       the confidential informant’s criminal cases.


[19]   However, Conner puts forth no authority to support his proposition that the

       State should have reviewed the confidential informant’s chronological case

       summaries to determine if Conner’s trial counsel had a conflict of interest. We

       decline to impose such a duty on the State. We also note that when the court

       continued Conner’s trial due to court congestion, the court did so to

       accommodate older cases. (Prior Case App. Vol. I at 152 (moved for case

       charged in April 2009); 144-45 (moved for case charged in March 2012); 143

       (moved for case charged in September 2010); 139-40 (moved for case charged in

       June 2012 and subject to Rule 4(B) request); 137-38 (moved for case charged in

       June 2012); 127-28 (moved for case charged in September 2011).) Therefore,

       while the delays due to court congestion weigh against the State, we give this

       factor slight weight because the delays were justified. See Wilkins v. State, 901

       N.E.2d 535, 537-38 (Ind. Ct. App. 2009) (holding defendant’s right to speedy

       trial was not violated when trial was continued due to court congestion), trans.

       denied.


                                    C. Assertion of Speedy Trial Right

[20]   As explained in Barker: “The more serious the deprivation, the more likely a

       defendant is to complain. The defendant’s assertion of his speedy trial right,

       then, is entitled to strong evidentiary weight in determining whether the
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 14 of 21
defendant is being deprived of the right.” 407 U.S. at 531-32. Conner sent five

pro se letters or motions to the trial court while he was represented by counsel

complaining about the delay in bringing him to trial, and Conner’s counsel filed

a motion for discharge under Criminal Rule 4 in February 2015. The motion

for discharge asked the court to release Conner from jail or dismiss the case.

Conner notes the defendant in Logan objected seven times to the delay in

bringing him to trial, and the Logan court held that these repeated assertions

weighed in Logan’s favor. 16 N.E.3d at 963. 6 Conner contends his pro se

assertions should receive the same weight in the Barker analysis as motions

made by counsel. However, as our Indiana Supreme Court observed in

Underwood v. State, trial courts are “not required” to respond to pro se requests or

motions when the litigant is represented by counsel. 722 N.E.2d 828, 832 (Ind.

2000) (“To require the trial court to respond to both Defendant and counsel

would effectively create a hybrid representation to which Defendant is not

entitled.”), reh’g denied. We also note that a litigant’s pro se requests could




6
  Conner offered the chronological case summary in Logan and motions Logan filed in the trial court as
Petitioner’s Exhibit 4 at the hearing on postconviction relief. However, the court did not admit the exhibit
into evidence. Conner argues the exhibit “is relevant to a proper evaluation of Conner’s assertion of his
speedy trial right. The post-conviction court abused its discretion by refusing to admit Petitioner’s Exhibit 4
into evidence.” (Appellant’s Br. at 29.) The trial court may refuse to admit evidence that is cumulative. The
Pelican, Inc. v. Downey, 567 N.E.2d 847, 850 (Ind. Ct. App. 1991), trans. denied. Before ruling on the State’s
objection to Exhibit 4, the court asked Conner what the exhibit added to what was said in the Logan decision.
Apparently unsatisfied with Conner’s answer, the court sustained the State’s objection. Therefore, we hold
the trial court did not abuse its discretion in refusing to admit Exhibit 4. See id. at 850 (holding trial court did
not abuse discretion in excluding cumulative evidence).

Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020                         Page 15 of 21
       undermine trial counsel’s litigation strategy. Therefore, Conner’s assertion of

       his constitutional right carries little weight.


                                       D. Prejudice Due to Delay

[21]   The speedy trial right is designed to protect three interests: “(i) to prevent

       oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the

       accused; and (iii) to limit the possibility that the defense will be impaired.”

       Barker, 407 U.S. at 532. The most serious of these concerns is the possibility the

       defense may be impaired. Id. Conner argues he was prejudiced by his lengthy

       “oppressive pretrial incarceration.” (Appellant’s Br. at 30.) He notes his period

       of pretrial incarceration was longer than the defendant in Logan. 16 N.E.3d at

       964 (Conner’s 1,034 days as compared to Logan’s 1,029 days). Conner

       disagrees with the post-conviction court’s conclusion that his pretrial

       incarceration “although lengthy, is clearly explainable and justified.” (App.

       Vol. II at 138.) However, Conner puts forth no assertion of prejudice beyond

       the fact of his incarceration. See Johnson, 83 N.E.3d at 87 (“The burden is on

       the defendant to show actual prejudice to prove a speedy trial deprivation.”). In

       fact, Crawford testified evidence was not lost as a result of the delay.

       Therefore, this factor weighs heavily in favor of the State. See id. (holding

       prejudice factor weighed against defendant when his defense was not impaired).


[22]   The length of delay in bringing Conner to trial was long, but other defendants

       have had longer delays without violating their rights to a speedy trial.

       Therefore, we weigh the length of the delay in Conner’s favor but afford it little


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 16 of 21
       weight. Similarly, we weigh the substantial delay due to court congestion only

       slightly against the State. We also weigh Conner’s assertion of his speedy trial

       right slightly in his favor because, while his trial counsel did not explicitly raise

       Conner’s constitutional right to a speedy trial, Conner’s counsel did file a

       motion for discharge under Criminal Rule 4. However, most significantly, we

       weigh the lack of prejudice to Conner as a result of the delay heavily against

       Conner. Having considered all four Barker factors, we hold that Conner’s trial

       attorneys did not perform deficiently because any constitutional challenge to

       the pretrial delay would not have been successful. See Wingate v. State, 900

       N.E.2d 468, 474 (Ind. Ct. App. 2009) (holding trial counsel did not render

       ineffective assistance by not arguing the State violated Criminal Rule 4(B) when

       it filed additional charges).


                              2. Performance of Appellate Counsel
[23]   Conner argues his appellate counsel was ineffective because she “failed to

       recognize that despite evidence of youth program centers within 1,000 feet of

       the offenses at the time of trial in 2015, there was no evidence of youth program

       centers at these locations at the time of the offenses in 2012.” (Appellant’s Br.

       at 33.) He argues the only evidence that a youth program center operated

       within 1,000 feet of Conner’s house in 2012 was hearsay, which the trial court

       admonished the jury not to consider.


[24]   Claims of ineffective assistance of appellant counsel generally fall into three

       categories: “(1) denying access to appeal; (2) waiver of issues; (3) failure to

       present issues well.” Harrison v. State, 707 N.E.2d 767, 786 (Ind. 1999).
       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 17 of 21
       Appellate counsel is expected to present the issues on appeal most likely to

       result in a reversal, and we show strong deference to appellate counsel’s

       strategic decision of which issues to bring. Walker v. State, 988 N.E.2d 1181,

       1191 (Ind. Ct. App. 2013), trans. denied. “In evaluating whether appellate

       counsel performed deficiently by failing to raise an issue on appeal, we apply

       the following test: (1) whether the unraised issue is significant and obvious from

       the face of the record and (2) whether the unraised issue is ‘clearly stronger’

       than the raised issues.” Id. (quoting Henley v. State, 881 N.E.2d 639, 644 (Ind.

       2008)).


[25]   Conner maintains the absence of evidence regarding youth program centers in

       2012 was significant and obvious from the face of the record, and the issue was

       clearly stronger than the issues raised on direct appeal by Conner’s appellate

       counsel. Conner sold cocaine in three separate controlled buys between August

       31 and September 19, 2012. 7 Conner’s jury trial occurred on July 20 and 21,

       2015. Melanie Sizemore testified during Conner’s jury trial. She was an

       employee of Healthy Beginnings, a division of the Elkhart County Health

       Department, located at 1400 Hudson Street in Elkhart, Indiana.


[26]   Conner challenges the post-conviction court’s finding that the State

       “question[ed] Ms. Sizemore about her knowledge of the hours of operation in

       2012, [sic] and established a business records exception to the hearsay



       7
        The trial court took judicial notice that one of the controlled buys occurred on a Friday, and the other two
       controlled buys occurred on Wednesdays.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020                    Page 18 of 21
       objection.” (App. Vol. II at 161.) Conner objected on hearsay grounds to

       Sizemore’s testimony about Healthy Beginnings’ hours of operation in 2012.

       The court sustained Conner’s objection and admonished the jury. While the

       State asked Sizemore additional questions to try to establish that her testimony

       fell within the business records exception to the hearsay rule, Conner contends

       such efforts were insufficient.


[27]   However, we note the uncorroborated testimony of a single witness can sustain

       a conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Notwithstanding

       Sizemore’s testimony, Conner’s proposed sufficiency argument fails because of

       the testimony of Gwen Jaeger, manager of the nursing division for the Elkhart

       County Health Department building at 608 Oakland Avenue in Elkhart. The

       building housed an immunization clinic, a lead poison prevention program for

       small children, and other services. The clinic served both children and adults.

       Jaeger testified the clinic was open Monday through Friday and approximately

       twenty to thirty children would visit the clinic per day. The State asked Jaeger:


               [State:] So, Miss Jaeger, would children have been present at 608
               Oakland Avenue on Friday, August 31st, at around 11:00 a.m.?


               [Jaeger:] I would say, yeah.


               [State:] Okay. What about on Wednesday, September 5th of
               2012, about 1:30 p.m.?


               [Jaeger:] Yeah. We’re not closed for lunch, so yeah. Yes.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 19 of 21
               [State:] How about Wednesday, September 19th, 2012, at 1:45
               p.m.?


               [Jaeger:] Yes.


       (Prior Case Tr. Vol. II at 256.) Conner attempts to discredit this testimony by

       arguing there is no evidence in the record that Jaeger worked at the Oakland

       Avenue clinic in 2012. He also contends Jaeger’s use of the present tense

       demonstrates she was testifying as to the hours of operation at time of trial

       rather than at the time of offense. However, these arguments would not have

       been successful on direct appeal because they are requests for us to reweigh the

       evidence. See Schath v. State, 2 N.E.3d 136, 138 (Ind. Ct. App. 2014) (“appellate

       courts do not reweigh the evidence or assess the credibility of the witnesses”).

       Therefore, we hold Conner’s appellate counsel did not perform deficiently

       when she chose not to raise a meritless argument. See Garrett v. State, 992

       N.E.2d 710, 724-25 (Ind. 2013) (holding appellate counsel did not perform

       deficiently by not raising weak double jeopardy argument on direct appeal).



                                                Conclusion
[28]   Conner’s trial attorneys did not perform deficiently by failing to raise a

       constitutional speedy trial objection to the delay in bringing Conner to trial.

       The delay was justified, and Conner’s defense was not prejudiced as a result of

       the delay. Also, Conner’s appellate counsel did not perform deficiently by

       failing to raise a sufficiency argument on direct appeal because such argument



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 20 of 21
       would not have been successful. Therefore, we affirm the trial court’s denial of

       Conner’s petition for post-conviction relief.


[29]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2106 | April 8, 2020   Page 21 of 21
