MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Jul 31 2019, 12:03 pm

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


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Gregory Johnson                                           Curtis T. Hill, Jr.
Correctional Industrial Facility                          Attorney General of Indiana
Pendleton, Indiana
                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory Johnson,                                          July 31, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          19A-PC-277
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Shatrese M.
Appellee-Respondent                                       Flowers, Judge
                                                          The Honorable James K. Snyder,
                                                          Commissioner
                                                          Trial Court Cause No.
                                                          49G20-1104-PC-27007



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-277 | July 31, 2019                      Page 1 of 6
                                              Case Summary
[1]   Gregory Johnson, pro se, appeals the denial of his petition for post-conviction

      relief (“PCR”). We affirm.


                                  Facts and Procedural History
[2]   In April 2011, police officers conducting a narcotics investigation in an

      Indianapolis parking lot approached a vehicle driven by Johnson. A passenger

      exited the vehicle, began to walk away, and tossed a suspected package of heroin

      to the ground. Officers stopped the passenger and ordered Johnson out of the

      vehicle. An officer handcuffed and patted down Johnson, advised him of his

      Miranda rights, and asked for permission to search the vehicle. Johnson refused.

      A police dog alerted to the scent of contraband in the vehicle. Police found $550

      in cash on Johnson’s person and in his car, as well as four packages of drugs in

      the car containing 16.9234 grams of cocaine, 7.4716 grams of cocaine, 2.5452

      grams of cocaine, and 4.0186 grams of heroin. The package that Johnson’s

      passenger tossed to the ground contained 0.4048 grams of heroin.


[3]   The State charged Johnson with class A felony dealing in cocaine, two counts of

      class A felony dealing in a narcotic drug, class C felony possession of cocaine,

      and class C felony possession of a narcotic drug. After a bench trial, the court

      found Johnson guilty of all but one count of class A felony dealing in a narcotic

      drug, entered judgment on the remaining class A felony counts, and sentenced

      him to concurrent thirty-year terms. On direct appeal, Johnson challenged the

      admissibility of the drug evidence on constitutional grounds. Another panel of


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-277 | July 31, 2019   Page 2 of 6
      this Court affirmed his convictions. Johnson v. State, No. 49A02-1209-CR-709,

      2013 WL 2146536 (Ind. Ct. App. May 16, 2013), trans. denied.


[4]   Johnson filed a pro se petition for PCR, which he later amended. After a hearing,

      the post-conviction court denied the petition. This appeal ensued.


                                     Discussion and Decision
[5]   “A PCR petitioner must establish grounds for relief by a preponderance of the

      evidence.” Ross v. State, 877 N.E.2d 829, 832 (Ind. Ct. App. 2007), trans. denied

      (2008). “When a post-conviction court denies relief, the petitioner appeals from

      a negative judgment and must demonstrate on appeal that the evidence

      unerringly and unmistakably leads to a conclusion opposite that reached by the

      court.” Id. “We may reverse the post-conviction court’s decision only if the

      evidence is without conflict and leads to the conclusion opposite that reached

      by the court.” Id.


[6]   “Post-conviction proceedings are not intended to be a ‘super-appeal’; rather,

      they provide a narrow remedy for collateral challenges to convictions that must

      be based on grounds enumerated in the post-conviction rules.” Id. “In post-

      conviction proceedings, complaints that something went awry at trial are

      generally cognizable only when they show deprivation of the right to effective

      counsel or issues demonstrably unavailable at the time of trial or direct appeal.”

      Id. at 833 (quoting Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002)). “Claims

      of regular or fundamental trial error are not reviewable in a post-conviction



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-277 | July 31, 2019   Page 3 of 6
      proceeding.” Id.1 Although Johnson “is proceeding pro se and lacks legal

      training, such litigants are held to the same standard as trained counsel and are

      required to follow procedural rules.” Id.


[7]   The only cognizable claims raised by Johnson in his brief are ineffective

      assistance of counsel claims related to the following principle:


                 When a defendant is charged with a drug offense that is
                 determined by the weight of the substance involved, the State
                 must prove that the scale used to weigh the substance was tested
                 before and after its use. The burden of producing evidence to
                 disprove the accuracy of the scale then shifts to the defendant.


      Wattley v. State, 721 N.E.2d 353, 355-56 (Ind. Ct. App. 1999) (citing Robinson v.

      State, 634 N.E.2d 1367, 1374 (Ind. Ct. App. 1994)). When Johnson committed

      his crimes in 2011, dealing in cocaine or a narcotic drug, pure or adulterated,

      was a class B felony; the crime was a class A felony if the amount of the drug

      involved weighed three grams or more. Ind. Code § 35-48-4-1 (2011). It is the

      total weight of the substance and not its pure component that is to be

      considered.2 Clark v. State, 539 N.E.2d 9, 12 (Ind. 1989). Johnson asserts that

      his trial counsel was ineffective in failing to question the State’s lab technician




      1
        Johnson argues, “[I]t was fundamental error that the State had the burden to prove (before any other
      progression in the trial court forward), experts calibrated the weighing scales before and after weighing of the
      drugs.” Appellant’s Br. at 9. This freestanding fundamental error claim is not reviewable in a post-
      conviction proceeding. Ross, 877 N.E.2d at 833. Johnson also purports to raise a “fatal variance” argument
      that is incomprehensible. Appellant’s Br. at 8, 11.
      2
          Johnson’s assertion to the contrary is erroneous.


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-277 | July 31, 2019                         Page 4 of 6
      regarding the calibration of the scale that was used to weigh the drugs and that

      his appellate counsel was ineffective in failing to raise the calibration issue on

      appeal.


[8]   An ineffective assistance of counsel claim


              requires the defendant to show by a preponderance of the
              evidence that (1) counsel’s performance was below the objective
              standard of reasonableness based on prevailing professional
              norms and (2) the defendant was prejudiced by counsel’s
              substandard performance, i.e. there is a reasonable probability
              that, but for counsel’s errors or omissions, the outcome of the
              trial would have been different.


      Ross, 877 N.E.2d at 833. “A reasonable probability is a probability sufficient to

      undermine confidence in the outcome.” Morales v. State, 19 N.E.3d 292, 297

      (Ind. Ct. App. 2014) (quoting Strickland v. Washington, 466 U.S. 668, 694

      (1984)), trans. denied (2015). The two parts of this test are separate and

      independent inquiries, and if it is easier to dispose of an ineffectiveness claim

      based on lack of sufficient prejudice, that course should be followed. Id.


[9]   Contrary to Johnson’s insinuation, “the State was not required to prove exact

      dates or that the scale was checked immediately before and after the [drugs

      were] weighed.” McKnight v. State, 1 N.E.3d 193, 203 (Ind. Ct. App. 2013)

      (citing Smith v. State, 829 N.E.2d 64, 77 (Ind. Ct. App. 2005)). “Indeed, the

      scale’s accuracy is foundational evidence, not an element of the crime.” Id.

      “Although the defense may rebut the State’s evidence regarding accuracy, the

      question of accuracy is ultimately a question for the trier of fact.” Id. “Thus,

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-277 | July 31, 2019   Page 5 of 6
       an objection to the accuracy of the scales would have gone to the weight of the

       evidence, not to its admissibility.” Id.


[10]   Simply put, Johnson has failed to establish by a preponderance of the evidence

       that if trial counsel had questioned the lab technician about the calibration of

       the scale, there is a reasonable probability that the outcome of his trial would

       have been different.3 The same holds true for appellate counsel’s failure to raise

       the calibration issue on appeal. Therefore, we affirm the denial of Johnson’s

       PCR petition.


[11]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       3
           At the post-conviction hearing, Johnson’s trial counsel testified,

                My trial strategy was that the weight was sufficient weight over the amount needed to obtain a
                conviction. And I didn’t have any reason to believe that the equipment was not functioning or
                would have been so far off. And my recollection is that I felt it would be detrimental to the
                outcome of the case to have them go through all of those steps when I didn’t have reason to
                believe that there was a malfunction with the scales.
       Tr. Vol. 2 at 10. “We will not second-guess trial counsel’s strategy and tactics unless they are so
       unreasonable that they fall outside objective standards.” Burnell v. State, 110 N.E.3d 1167, 1170 (Ind. Ct.
       App. 2018). Trial counsel’s strategy strikes us as eminently reasonable under the circumstances, and thus
       Johnson’s ineffectiveness claim would fail on this basis as well.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-277 | July 31, 2019                        Page 6 of 6
