MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   Apr 15 2019, 10:20 am

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
Walter Havvard                                            Curtis T. Hill, Jr.
Carlisle, Indiana                                         Attorney General of Indiana
                                                          George P. Sherman
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Walter Havvard,                                           April 15, 2019
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          49A02-1711-PC-2773
        v.                                                Appeal from the
                                                          Marion Superior Court
State of Indiana,                                         The Honorable
Appellee-Respondent.                                      Alicia A. Gooden, Judge
                                                          The Honorable
                                                          Richard E. Hagenmaier,
                                                          Commissioner
                                                          Trial Court Cause No.
                                                          49G21-1603-PC-9204



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019                Page 1 of 12
[1]   Walter Havvard (“Havvard”) appeals the trial court’s denial of his petition for

      post-conviction relief, raising the following issues:


               I.     Whether the attorney who represented Havvard in the
               pretrial stage of his first trial was ineffective for failing to pursue
               an interlocutory appeal of the trial court’s denial of Havvard’s
               motion to suppress.


               II.    Whether the attorney who represented Havvard during
               both the pretrial and evidentiary phases of the second trial was
               ineffective for failing to file a motion to suppress the same
               evidence at issue during the first trial and whether that attorney
               was ineffective for failing to object to the admission of that
               evidence at the second trial.


[2]   We affirm.


                                   Facts and Procedural History1
[3]   On June 17, 2010, Detective Sergeant James Fiscus (“Detective Fiscus”) of the

      Indianapolis Metropolitan Police Department (“IMPD”) filed an affidavit in

      support of a request to search a residence at 427 W. Bernard Ave., Indianapolis

      (“the residence”), based on information from a confidential informant (“CI”),

      who said that Havvard was selling cocaine from the residence. App. Vol. I at

      158. At the time, the CI had been working with law enforcement officers in

      Marion County for approximately two-and-a-half years and had worked with




      1
       We will refer to the appellant’s appendix for the direct appeal as “App.,” the post-conviction transcript as
      “PCR Tr.,” and the appellant’s appendix for post-conviction relief as “PCR App.”




      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019               Page 2 of 12
      Detective Fiscus for about two years. Id. at 159-60. The affidavit stated that

      between June 8 and June 10, 2010, Detective Fiscus and the CI executed two

      controlled drug buys at the residence where Havvard sold cocaine to the CI. Id.

      at 158-60. Based on these controlled buys, Detective Fiscus’s affidavit

      requested that the magistrate issue a warrant to allow police to search the

      residence. Id. at 160-62. The magistrate found that the affidavit established

      probable cause for the issuance of a search warrant, id. at 163, and issued the

      warrant on June 17, 2010. Id. at 152-54; Havvard v. State, No. 49A02-153-CR-

      127, slip op. at 2 (Ind. Ct. App. Dec. 15, 2015).


[4]   On June 18, 2010, narcotics detectives with the IMPD served the search

      warrant. Id. Havvard was the only person in the residence when the officers

      served the warrant. Id. Detectives found large amounts of cocaine and

      marijuana, an assault rifle, $2000 in cash, digital scales, and Pyrex measuring

      cups. Id. at 3. On June 23, 2010, the State charged Havvard with the

      following: Class A felony dealing in cocaine2; Class A felony possession of

      cocaine3; Class C felony possession of cocaine and a firearm 4; Class B felony

      unlawful possession of a firearm by a serious violent felon 5; Class D felony




      2
          See Ind. Code § 35-48-4-1.
      3
          See Ind. Code § 35-48-4-6(b)(3).
      4
          See Ind. Code § 35-48-4-6(b)(1)(B).
      5
          See Ind. Code § 35-47-4-5.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019   Page 3 of 12
      dealing in marijuana6; and Class D felony possession of marijuana.7 Id. On

      June 7, 2011, the State alleged that Havvard was an habitual offender. 8 Id.


[5]   On July 23, 2013, attorney Andrew C. Maternowski (“Maternowski”) appeared

      on Havvard’s behalf. App. Vol. I at 9. On November 6, 2013, Maternowski

      filed a motion to suppress, alleging, inter alia, that the search warrant affidavit

      (1) failed to establish good cause that contraband would be found in the

      residence; (2) failed to establish the reliability of the confidential informant; and

      (3) was so lacking in establishing probable cause that no reasonably well-trained

      officer would have relied upon the search warrant in good faith. Id. at 148-51.

      The trial court denied the motion. Id. at 164. On January 10, 2014, Havvard

      wrote a letter to Maternowski, complaining about Maternowski’s “racist

      comments” and describing him as a “sneaky guy.” Id. at 165; PCR App. Vol. II

      at 12. Six days later, on January 16, 2014, Maternowski sought leave to

      withdraw as Havvard’s attorney, and on February 3, 2014, the trial court

      granted the request. App. Vol. I at 10, 169. That same day, attorney Greg

      Spencer (“Spencer”) appeared on Havvard’s behalf. Id. at 10.


[6]   On February 11, 2014, the State added a charge of Class A felony conspiracy to

      commit dealing in cocaine9 and amended the possession of cocaine charge to a




      6
          See Ind. Code § 35-48-4-10.
      7
          See Ind. Code § 35-48-4-11.
      8
          See Ind. Code § 35-50-2-8.
      9
          See Ind. Code § 35-48-4-1(a) and Ind. Code § 35-41-5-2.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019   Page 4 of 12
      Class C felony.10 Havvard, slip op. at 3. During Havvard’s trial, Spencer

      objected to the admission of the evidence obtained through execution of the

      search warrant at the residence. PCR Tr. at 10. The trial ended in a hung jury.

      Id. at 11. As the case was set for a second trial, Spencer continued to represent

      Havvard. Spencer did not file a motion to suppress nor did he object at trial to

      the admission of the evidence found at the residence. Id. at 16. Havvard was

      convicted as charged. Havvard, slip op. at 4.


[7]   At sentencing, the State dismissed all the charges except for the dealing in

      cocaine charge and the habitual offender enhancement. Id. The trial court

      entered judgment of conviction on the dealing charge and sentenced Havvard to

      thirty years executed. Id. The trial court also enhanced Havvard’s sentence for

      dealing cocaine by an additional thirty years for being an habitual offender, for

      an aggregate executed sentence of sixty years. Id.


[8]   On direct appeal, Havvard argued, inter alia, that the search warrant affidavit

      failed to establish probable cause to search the residence. We found that

      Havvard waived this issue because he did not object when the evidence was

      introduced at trial. Id. We affirmed the trial court. Id. at 10.


[9]   Havvard sought post-conviction relief, filing his initial petition on March 18,

      2016, and an amended petition on September 23, 2016. PCR App. Vol. II at 2,

      74. Havvard alleged that Maternowski, his pretrial counsel in the first trial, was



      10
           See Ind. Code § 35-48-4-6(b).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019   Page 5 of 12
       ineffective for failing to pursue an interlocutory appeal following the denial of

       Havvard’s motion to suppress. Id. at 75-79. Havvard alleged that Spencer, his

       attorney during the second trial, was ineffective for failing to file a motion to

       suppress and for failing to object to the admission of evidence at the second

       trial. Id. at 80-91.


[10]   Both Maternowski and Spencer testified at the post-conviction evidentiary

       hearing. PCR Tr. at 9-39; 48-58. Maternowski said he did not recall why he did

       not initiate an interlocutory appeal of the trial court’s denial of the motion to

       suppress. Id. at 51. Spencer testified that as the second trial approached, he

       again reviewed the evidence regarding the search warrant, including the search

       warrant affidavit and the officers’ depositions. Id. at 18. Spencer stated that he

       did not object to the introduction of the evidence because the search warrant

       “appeared to be solid” and there “wasn’t reasonable grounds to attack it.” Id.

       at 16, 18.


[11]   Spencer also cited strategic reasons for not filing a motion to suppress or

       objecting at trial. Spencer believed that if he had asked the trial court to

       suppress the evidence, he would necessarily have argued that Havvard had

       standing to challenge the search, by which he would admit, even if only tacitly,

       that Havvard was strongly tied to the residence and was, at the very least, fully

       aware of the drugs and other contraband in the residence. Responding to

       Havvard’s questions, Spencer testified as follows:


               And we had discussed a strategy that was going to minimize your
               contact with the residence. The prior trial, the evidence was



       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019   Page 6 of 12
               more in the testimony and the idea was more in line that you had
               more of a presence and more of issue of standing to object into
               the regards of the - your position at the residence. At the second
               trial we decided to alter that strategy and attempt to make it
               appear that you were more of a transient to that residence and
               simply were there after having been passed out the evening before
               from intoxication.


       PCR Tr. at 17-18. In response to the State’s questions during cross-

       examination, Spencer testified as follows:


               The strategy, obviously, was to distance Mr. Havvard from the
               residence as much as possible. There was a – there was the
               notion that the - obviously that if [Havvard] were to testify and
               deny being there previously, that the State would introduce
               evidence that he was involved in at least one of those controlled
               buys, and we wanted to avoid, avoid that, of course. And - as
               though he had no connection to that residence at all . . . . and
               [the] argument being that he had no knowledge of those items
               because he just had been -- had been there and passed out and
               was not in knowing possession of those items.


       Id. at 26-27. On June 19, 2017, the trial court denied Havvard’s petition for

       post-conviction relief. PCR. App. Vol. II at 6, 9-31.


                                      Discussion and Decision
[12]   Havvard argues that Maternowski was ineffective during the pretrial stage of

       the first trial for failing to initiate an interlocutory appeal of the denial of the

       motion to suppress. Havvard contends that had Maternowski pursued an

       interlocutory appeal, this court would have reversed the trial court’s ruling and

       the State would have been forced to dismiss the charges against Havvard




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019   Page 7 of 12
       because without the evidence found during the search, the evidence was

       insufficient to sustain a conviction on any of the charges.


[13]   Havvard contends that Spencer was ineffective during the second trial for both

       failing to file a motion to suppress and failing to object at trial to the admission

       of the evidence seized from the residence. He argues that if Spencer had

       objected at trial, this court would have 1) reviewed the issue on the merits, 2)

       found that the evidence was inadmissible, and 3) reversed his convictions. This

       would have forced the State to dismiss the case for lack of sufficient evidence.


[14]   Havvard’s claims that both attorneys were ineffective are grounded in his

       argument that the search warrant affidavit failed to establish the reliability of

       the confidential informant, failed to establish probable cause, and was so

       lacking in establishing probable cause that the good faith exception to the

       exclusionary rule did not apply.


[15]   A petitioner in a post-conviction proceeding has the burden to establish the

       grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

       Rule 1(5); Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). A petitioner

       who appeals the denial of post-conviction relief is appealing a negative

       judgment, id., and thus faces a “rigorous standard of review.” Dewitt v. State,

       755 N.E.2d 167, 170 (Ind. 2001). Thus, we will affirm the denial of post-

       conviction relief unless the petitioner shows that the evidence leads “unerringly

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

       court.” McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). We accept the post-




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019   Page 8 of 12
       conviction court’s findings of fact unless they are clearly erroneous or leave the

       court with a definite and firm conviction that a mistake has been made.

       Hollowell, 19 N.E.3d at 269. We do not reweigh the evidence and consider only

       the probative evidence and all reasonable inferences therefrom that support the

       post-conviction court’s determination. West v. State, 938 N.E.2d 305, 309 (Ind.

       Ct. App. 2010), trans. denied.


[16]   To establish a claim of ineffective assistance of counsel, a defendant must

       demonstrate that 1) counsel’s performance was deficient and 2) the deficient

       performance resulted in prejudice. Helton v. State, 907 N.E.2d 1020, 1023 (Ind.

       2009). As to the first component, counsel is afforded wide latitude in choosing

       strategy and tactics, and we will accord that decision significant deference.

       Pruitt v. State, 903 N.E.2d 899, 928 (Ind. 2009). “A strong presumption arises

       that counsel rendered adequate assistance and made all significant decisions in

       the exercise of reasonable professional judgment.” Id. at 906. Regarding the

       second prong, deficient performance will be prejudicial only when there is a

       reasonable probability that, but for counsel’s deficient performance, the result of

       the proceeding would have been different. Strickland v. Washington, 466 U.S.

       668, 694 (1984).


[17]   When reviewing the adequacy of a search warrant, we focus on whether a

       substantial basis existed for a warrant, and doubtful cases are to be resolved in

       favor of upholding the warrant. Iddings v. State, 772 N.E.2d 1006, 1012 (Ind.

       Ct. App. 2002). We defer to the magistrate who issued the warrant, focusing

       on whether reasonable inferences drawn from the totality of the evidence




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019   Page 9 of 12
       support the determination. Id. We presume that a search warrant is valid, and

       a defendant bears the burden to overturn that presumption. Id.


[18]   Here, Maternowski was not ineffective for failing to initiate an interlocutory

       appeal of the trial court’s denial of the motion to suppress. “[A] ruling on a

       pretrial motion to suppress is not intended to serve as the final expression

       concerning admissibility.” Joyner v. State, 678 N.E.2d 386, 393 (Ind. 1997)

       (quoting Gajdos v. State, 462 N.E.2d 1017, 1022 (Ind. 1984)). Thus, the

       admissibility of the evidence that Maternowski challenged in the motion to

       suppress was still a viable issue for Spencer to raise in the first trial, which he

       did by objecting when the State tendered the evidence. PCR Tr. at 10.

       Moreover, Havvard overlooks the discretionary nature of interlocutory appeals.

       Neither the trial court nor this court would have been required to authorize an

       interlocutory appeal. See Ind. Appellate Rule 14(B)(1) (“The trial court, in its

       discretion . . . may certify an interlocutory order to allow an immediate

       appeal.”) (emphasis added) and Ind. Appellate Rule 14(B)(2) (“If the trial court

       certifies an order for interlocutory appeal, the Court of Appeals, in its discretion

       . . . may accept jurisdiction of the appeal.”) (emphasis added). Therefore,

       Maternowski did not render deficient performance in choosing to not initiate an

       interlocutory appeal, and Havvard suffered no prejudice from Maternowski’s

       decision because the admissibility of evidence was still available for attorney

       Spencer to raise at trial.


[19]   As to Spencer, we find that he was not ineffective during the second trial for

       choosing to not file a motion to suppress and choosing to not object to the




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019   Page 10 of 12
       admission of the evidence at trial because there were strategic reasons for not

       doing so. Spencer was understandably concerned that attempting to exclude

       the evidence would necessarily require him to argue that Havvard had standing

       to challenge the admissibility of the evidence, which would force Havvard to

       admit that he was strongly tied to the residence where the contraband was

       found. Taking this approach would undermine what Spencer reasonably

       believed was a sound trial defense, which was to argue that Havvard had no

       knowledge of the drugs and other contraband at the residence and that when

       the officers executed the search warrant at the residence, he was there by

       happenstance and was not aware of the presence of the incriminating evidence.

       PCR Tr. at 26-27. This was a sensible defense because the residence was more a

       “drug house” than a residence as it had minimal furniture and was essentially

       empty. Id. at 28-29. Objecting to admission of the evidence, and thereby

       asserting standing and an expectation of privacy, would likely strengthen

       Havvard’s connection to the residence from the perspective of the jury. See

       Minnesota v. Carter, 525 U.S. 83, 88 (1998) (standing under United States

       Constitution); Peterson v. State, 674 N.E.2d 528, 533 (Ind. 1996) (standing under

       Indiana Constitution).


[20]   Therefore, the defense employed by Spencer was a calculated rational attempt

       to convey to the jury that Havvard had no actual knowledge, or reason to know

       of contraband or illegal activities occurring at the residence. Spencer was

       afforded considerable discretion in choosing strategy and tactics, see Strickland,

       466 U.S. at 689, and we presume that he made these decisions in the exercise of




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019   Page 11 of 12
       reasonable professional judgment. Id. at 690. We thus defer to Spencer’s

       strategic decision to forgo a challenge to the admission of evidence and find that

       he did not render ineffective assistance of counsel in not filing a motion to

       suppress or in choosing to not object to the admission of evidence at trial.


[21]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-PC-2773 | April 15, 2019   Page 12 of 12
