MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Oct 14 2016, 10:22 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
Stephen T. Owens                                         Gregory F. Zoeller
Public Defender of Indiana                               Attorney General of Indiana
Borahm Kim                                               Jesse R. Drum
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronald Weaver,                                           October 14, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A03-1601-PC-14
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1310-PC-66



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1601-PC-14 | October 14, 2016         Page 1 of 8
[1]   Ronald Weaver appeals the denial of his petition for post-conviction relief. He

      argues that the post-conviction court erroneously determined that (1) he

      pleaded guilty knowingly, voluntarily, and intelligently; and (2) he did not

      receive the ineffective assistance of trial counsel. Finding no error, we affirm.


                                                     Facts
[2]   On June 9, 2009, Elkhart County law enforcement officers executed a search

      warrant at Weaver’s home. Weaver, his wife, and their two minor children

      were present in the residence at that time. Among other things, the officers

      located the following items inside the home: (1) .3 grams of methamphetamine

      in the pocket of Weaver’s wife; (2) sixteen blister packs of pseudoephedrine;

      (3) a digital scale; (4) a coffee filter containing a white, powdery substance;

      (5) multiple receipts for items that are precursors to the manufacture of

      methamphetamine; and (6) a Hawaiian Punch bottle, which had a hose with a

      valve attached coming out of the top of the bottle, containing sludge at the

      bottom and a liquid inside—later tests revealed that ammonia was present in

      this bottle. Weaver admitted to the officers that he manufactures

      methamphetamine, that he likely made the methamphetamine found in his

      wife’s pocket, and that he generally manufactures between three and six grams

      of methamphetamine per batch.


[3]   On June 16, 2009, the State charged Weaver with class A felony manufacturing

      methamphetamine over three grams. On April 19, 2012, Weaver pleaded guilty

      as charged. The trial court sentenced him to forty years imprisonment, with ten


      Court of Appeals of Indiana | Memorandum Decision 20A03-1601-PC-14 | October 14, 2016   Page 2 of 8
      years suspended to probation. On October 15, 2013, Weaver filed a pro se

      petition for post-conviction relief, which was later amended by counsel. On

      October 21, 2015, the post-conviction court held an evidentiary hearing on the

      petition, and on December 11, 2015, the post-conviction court issued an order

      denying Weaver’s petition. Weaver now appeals.


                                   Discussion and Decision
[4]   Weaver raises two arguments on appeal. First, he argues that he did not plead

      guilty knowingly, intelligently, and voluntarily because he was misled by his

      attorney, who told him that the State had enough evidence to convict him of the

      class A felony. Second, he argues that his trial attorney was ineffective for

      advising him to accept the plea agreement.


[5]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:

              “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).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. To prevail on appeal from the denial of post-
              conviction relief, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post–Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[a] post-conviction court’s findings
      Court of Appeals of Indiana | Memorandum Decision 20A03-1601-PC-14 | October 14, 2016   Page 3 of 8
              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.” Ben–Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


                                             I. Guilty Plea
[6]   In evaluating Weaver’s argument regarding his guilty plea, we look at all

      evidence before the post-conviction court that supports its determination that

      the plea was knowing, voluntary, and intelligent. Collins v. State, 14 N.E.3d 80,

      85 (Ind. Ct. App. 2014). If a defendant can show that he was misled into

      pleading guilty by the judge, prosecutor, or defense counsel, he presents a

      colorable claim that his plea was not voluntary. Baker v. State, 768 N.E.2d 477,

      479 (Ind. Ct. App. 2002).


[7]   Initially, we note that in his petition for post-conviction relief and at the post-

      conviction hearing, Weaver argued that he was misled by the prosecutor, rather

      than by his own attorney. As he may not raise a new argument on appeal, this

      issue is waived.


[8]   Waiver notwithstanding, Weaver contends that his attorney misled him about

      the likelihood of conviction if he proceeded to trial. Specifically, he notes that

      only .3 grams of methamphetamine were found in his residence. He contends

      that his attorney misled him when she stated that the State could use the

      evidence of the sludge and liquid in the Hawaiian Punch bottle to reach the

      required weight of three grams for the class A felony conviction.
      Court of Appeals of Indiana | Memorandum Decision 20A03-1601-PC-14 | October 14, 2016   Page 4 of 8
[9]    We disagree. Weaver pleaded guilty to manufacturing three grams or more of

       “methamphetamine, pure or adulterated.” Ind. Code § 35-48-4-1.1(b) (2009).

       At the time Weaver committed this crime, the State could use evidence of

       unfinished methamphetamine to prove the weight of the drug. See Traylor v.

       State, 817 N.E.2d 611, 619-20 (Ind. Ct. App. 2004) (finding evidence sufficient

       where a methamphetamine reaction vessel contained a product weighing more

       than three grams).1 In this case, Weaver admitted that he had manufactured the

       .3 grams of methamphetamine found in his wife’s pocket. Additionally, he told

       the police that he uses three boxes of pseudoephedrine per two-liter bottle and

       produces three to six grams of methamphetamine per batch. Law enforcement

       officials found pseudoephedrine and other evidence of a methamphetamine lab

       corroborating Weaver’s confession, including a Hawaiian Punch bottle with a

       hose coming out of it, a valve attached to the hose, sludge at the bottom, and a

       liquid inside the bottle.


[10]   It is true that, had the case proceeded to trial, the State would have had to offer

       evidence of the weight of the sludge and liquid inside the two-liter bottle to

       convict Weaver of the charged offense. See Halsema v. State, 823 N.E.2d 668,




       1
         Traylor was later overruled by Buelna v. State, 20 N.E.3d 137 (Ind. 2015). In Buelna, our Supreme Court
       clarified that “‘adulterated’ methamphetamine is the final, extracted product that may contain lingering
       impurities or has been subsequently debased or diluted by a foreign substance—not an intermediate mixture
       that has not undergone the entire manufacturing process. Thus, the weight of an intermediate mixture is
       probative of the weight enhancement only if the State presents evidence that establishes how much finished
       drug the intermediate mixture would have yielded if the manufacturing process had been completed.” Id. at
       142. For the purposes of this case, however, we must examine the state of the law at the time Weaver
       pleaded guilty; therefore, we will not rely on Buelna and its progeny.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1601-PC-14 | October 14, 2016           Page 5 of 8
       674 (Ind. 2005) (holding that State must introduce evidence of weight of

       methamphetamine to convict defendant of possessing three grams or more of

       it). But Weaver’s attorney did not mislead him by advising him that if the

       amount of sludge and liquid in the two-liter bottle totaled 2.7 grams or more (an

       easy inference to make given Weaver’s confession that he typically produces

       three to six grams of methamphetamine per batch), the State would have

       sufficient evidence to convict him of class A felony manufacturing

       methamphetamine.


[11]   When Weaver pleaded guilty, he understood the charge and voluntarily

       admitted his guilt. He has not established that he was misled by his attorney in

       the process. Consequently, the post-conviction court did not err by denying his

       petition for post-conviction relief on this basis.


                                    II. Assistance of Counsel
[12]   Weaver also argues that his attorney was ineffective for advising him to accept

       the guilty plea offer. A claim of ineffective assistance of trial counsel requires a

       showing that: (1) counsel’s performance was deficient by falling below an

       objective standard of reasonableness based on prevailing professional norms;

       and (2) counsel’s performance prejudiced the defendant such that “‘there is a

       reasonable probability that, but for counsel's unprofessional errors, the result of

       the proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441,

       444 (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

       reasonable probability arises when there is a ‘probability sufficient to undermine


       Court of Appeals of Indiana | Memorandum Decision 20A03-1601-PC-14 | October 14, 2016   Page 6 of 8
       confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

       2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

       prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

       Ct. App. 2012).


[13]   As noted above, Weaver’s attorney correctly advised him based on the state of

       the law at the time he pleaded guilty. Counsel reasonably concluded that

       Weaver could be convicted of the class A felony based on the amount of

       methamphetamine found in his wife’s pocket plus the amount of sludge and

       liquid in the two-liter bottle found in Weaver’s residence. Counsel was also

       concerned about Weaver’s exposure to additional charges, including

       maintaining a common nuisance and two counts of neglect of a dependent, as

       well as his total possible sentencing exposure given a significant criminal history

       and the fact that he was on probation at the time he committed this crime. She

       attempted to negotiate the charge down to a class B felony, but in the end

       agreed to an A felony because of the threat of the additional charges. Counsel

       did, however, obtain the State’s agreement to cap Weaver’s executed sentence

       at thirty years, dismiss any other charges, and refrain from filing any additional

       charges arising from the incident. In our view, trial counsel performed well

       given that Weaver had freely confessed to law enforcement before she was

       appointed to represent him.


[14]   We will not second-guess counsel’s strategy in negotiating this plea agreement

       or in presenting the negotiated agreement to her client. We find that Weaver

       has not met his burden of showing that his trial attorney’s performance was

       Court of Appeals of Indiana | Memorandum Decision 20A03-1601-PC-14 | October 14, 2016   Page 7 of 8
       deficient, and find no error in the post-conviction court’s denial of Weaver’s

       petition on this basis.


[15]   The judgment of the post-conviction court is affirmed.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1601-PC-14 | October 14, 2016   Page 8 of 8
