MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D), this                     Feb 06 2017, 8:47 am
Memorandum Decision shall not be regarded as
                                                                    CLERK
precedent or cited before any court except for the              Indiana Supreme Court
                                                                   Court of Appeals
purpose of establishing the defense of res judicata,                 and Tax Court
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                ATTORNEYS FOR APPELLEE
Stephen T. Owens                                       Curtis T. Hill, Jr.
Public Defender of Indiana                             Attorney General of Indiana
Corrine J. Lightner                                    Ellen H. Meilaender
Lindsay Van Gorkom                                     Deputy Attorney General
Deputy Public Defenders                                Indianapolis, Indiana
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kevin D. Speer,                                            February 6, 2017

Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           79A05-1608-PC-1736

        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
State of Indiana,                                          The Honorable Randy J. Williams,
                                                           Judge
Appellee-Respondent.
                                                           Trial Court Cause No. 79D01-1311-
                                                           PC-13




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 1 of 17
                                          Case Summary
[1]   In September of 2011, Appellant-Petitioner Kevin Speer and Jason Ferguson

      were observed leaving the home of David Balser, who was suspected by police

      of being involved in illegal drugs. Police stopped the truck in which Speer and

      Ferguson were driving, and officers indicated they would be conducting a dog

      sniff of the truck and attached trailer. When the dog indicated the presence of

      contraband, officers searched the truck and a black bag on the ground next to

      the truck, uncovering methamphetamine, drug paraphernalia, and numerous

      materials used in the consumption and manufacture of methamphetamine. A

      search conducted pursuant to a warrant uncovered more such evidence.


[2]   The State charged Speer with Class B felony conspiracy to manufacture

      methamphetamine, Class B felony methamphetamine manufacture, Class D

      felony methamphetamine possession, Class D felony possession of precursors,

      Class D felony maintaining a common nuisance, and Class A misdemeanor

      possession of paraphernalia and alleged that Speer was a habitual substance

      offender. A jury found Speer guilty as charged. On appeal, this court vacated

      Speer’s conviction for possession of precursors, correspondingly reduced his

      aggregate sentence by two and one-half years, and otherwise affirmed his

      convictions and sentence.


[3]   Speer filed a petition for post-conviction relief (“PCR”), alleging that he had

      received ineffective assistance of trial and appellate counsel. After a hearing,

      the post-conviction court denied Speer’s PCR petition. Speer contends that the


      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 2 of 17
      post-conviction court erred in denying his PCR petition. Because we disagree,

      we affirm.



                            Facts and Procedural History
[4]   The facts underlying this appeal are as follows:


              On September 25, 2011, Detective Chad Robinson of the
              Lafayette Police Department was conducting surveillance at the
              residence of David Balsar [sic], who was suspected of
              participation in drug activity. Around 10:00 p.m., a red truck
              with an attached trailer left the residence. Detective Robinson
              followed the vehicle and noticed the license plates on both the
              trailer and the truck were partially obscured. He initiated a traffic
              stop.

              Speer who [sic] was driving the vehicle and Jason Ferguson was
              his passenger. Detective Robinson discovered the plates on the
              truck were registered to a different vehicle. Back-up officers
              arrived at the scene, and Detective Robinson told Speer he would
              be conducting a dog sniff investigation of the vehicle. The dog
              alerted for the presence of narcotics near the driver’s door.

              Detective Robinson searched the cab of the truck and found a
              black pouch containing syringes, methamphetamine, and digital
              scales; a bag of syringes; two glass smoking pipes; and a device
              for smoking marijuana. He also found plastic aquarium tubing,
              more syringes, a funnel, measuring cups, Heet starting fluid,
              lithium batteries, coffee filters, and pseudoephedrine pills. The
              officers on scene recognized an odor consistent with that of a
              methamphetamine manufacture lab. Detective Robinson filed an
              affidavit in support of a search warrant, which was issued, and
              the rest of the truck and trailer were searched. The subsequent
              search yielded additional items that could be used to
              manufacture methamphetamine.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 3 of 17
      Speer v. State, 995 N.E.2d 1, 4 (Ind. Ct. App. 2013), trans. denied. The additional

      items found in the truck and trailer included bottles of lye; organic solvents;

      sulfuric acid bottles; Coleman fuel bottles; empty pseudoephedrine boxes and

      blister packs; ammonia; and receipts for the purchase of pseudoephedrine,

      lithium batteries, and lye. The State charged Speer with Class B felony

      conspiracy to manufacture methamphetamine, Class B felony

      methamphetamine manufacture, Class D felony methamphetamine possession,

      Class D felony possession of precursors, Class D felony maintaining a common

      nuisance, and Class A misdemeanor possession of paraphernalia and alleged

      that Speer was a habitual substance offender.


[5]   Ferguson testified against Speer at his trial. Ferguson testified that he and Speer

      were using methamphetamine the day they were pulled over, they provided

      Balser with the ingredients to make methamphetamine, they purchased

      materials at Menard’s, Balser was teaching Speer how to make

      methamphetamine, Shannon Carnahan was present at Balser’s home, and he

      and Speer took some of the bottles with them when they left. Ferguson also

      testified that he met Balser through Kevin Douglas, Douglas co-owned the

      truck they were driving the day they were pulled over, they were on their way

      to Douglas’s to see if he had any Coleman fuel, and Douglas and Balser were

      co-defendants in a separate criminal case.


[6]   The jury heard that Ferguson had already pled guilty to Class D felony

      methamphetamine possession, Class D felony illegal drug lab, and to being a

      habitual substance offender; that the State would not oppose his participation in

      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 4 of 17
      the Forensic Diversion Program pursuant to the plea agreement; and that he

      had to provide a clean-up statement and testify in this case and that failure to do

      so would constitute a violation of the terms of his probation. The jury was not

      informed that Ferguson had been granted use immunity for his testimony or

      that more serious charges against him had been dropped pursuant to his plea

      agreement.1


[7]   Carnahan, who was in a relationship with Balser, also testified. Carnahan

      testified that she had been at Balser’s house, Balser was teaching Speer how to

      manufacture methamphetamine, people would bring ingredients to Balser’s

      house for him to use in manufacturing methamphetamine, and Douglas also

      drove the truck used by Balser the day he was pulled over and searched. The

      jury also heard that Carnahan had been arrested and charged in a separate case

      with methamphetamine manufacture and illegal drug lab, she had pled guilty to

      Class B felony conspiracy to manufacture methamphetamine and been

      sentenced to thirteen years with three suspended, and she was required to testify

      truthfully against Speer. The jury was not told that Carnahan received use

      immunity for her testimony.2


[8]   Detective Robinson and another officer testified that when Speer was informed

      that a dog would sniff his truck, Speer commented that police dogs “suck”




      1
          There is no allegation or indication that the State withheld this information from Speer.
      2
          As with Ferguson, there is no allegation or indication that the State withheld this information from Speer.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017             Page 5 of 17
       because, anytime he is stopped, the dogs always indicate the presence of

       contraband but nothing is ever found. Trial Tr. p. 86. And, during the State’s

       opening and closing arguments, the prosecutor referred to the

       methamphetamine “subculture” of which Speer was allegedly a part. Tr. pp.

       57-64, 315-23, 335-41.


[9]    The jury found Speer guilty as charged, and the trial court sentenced him to an

       aggregate term of thirty-three and one-half years of incarceration. Attorney

       David Mattingly represented Speer on direct appeal and raised the following

       issues: (1) the validity of the traffic stop, (2) the validity of the search warrant,

       (3) the denial of his mistrial motion, (4) the sufficiency of the evidence, (5) a

       double jeopardy violation in his convictions for methamphetamine manufacture

       and possession of precursors, and (6) the appropriateness of his sentence. Speer,

       995 N.E.2d at 3-4. This court accepted Speer’s double jeopardy argument

       (vacating his conviction for possession of precursors and reducing his aggregate

       sentence by two and one-half years) and otherwise affirmed his convictions and

       sentence. Id. at 14.


[10]   On October 15, 2013, Speer filed a PCR petition, which he amended on

       October 2, 2015. Speer argued that he received ineffective assistance of trial

       and appellate counsel in several respects. The post-conviction court held an

       evidentiary hearing on April 11, 2016. On July 7, 2016, the post-conviction

       court denied Speer’s PCR petition in full.



                                  Discussion and Decision
       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 6 of 17
                                              Standard of Review

[11]   Speer contends the post-conviction court erred in denying his PCR petition.

       Our standard for reviewing the denial of a PCR petition is well-settled:


               In reviewing the judgment of a post-conviction court, appellate
               courts consider only the evidence and reasonable inferences
               supporting its judgment. The post-conviction court is the sole
               judge of the evidence and the credibility of the witnesses. To
               prevail on appeal from denial of post-conviction relief, the
               petitioner must show that the evidence as a whole leads
               unerringly and unmistakably to a conclusion opposite to that
               reached by the post-conviction court.… Only where the evidence
               is without conflict and leads to but one conclusion, and the post-
               conviction court has reached the opposite conclusion, will its
               findings or conclusions be disturbed as being contrary to law.

       Hall v. State, 849 N.E.2d 466, 468, 469 (Ind. 2006) (internal citations and

       quotations omitted).


                     I. Ineffective Assistance of Trial Counsel
[12]   Speer contends that he received ineffective assistance of trial counsel in several

       respects. We review claims of ineffective assistance of counsel based upon the

       principles enunciated in Strickland v. Washington, 466 U.S. 668 (1984):


               Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
               L. Ed. 2d 674 (1984), a claim of ineffective assistance of 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 so much that “there is a reasonable
               probability that, but for counsel’s unprofessional errors, the result
               of the proceeding would have been different.” Id. at 687, 694,

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 7 of 17
               104 S. Ct. 2052; Lowery v. State, 640 N.E.2d 1031, 1041 (Ind.
               1994). …. Failure to satisfy either prong will cause the claim to
               fail. Vermillion v. State, 719 N.E.2d 1201, 1208 (Ind. 1999).

       French v. State, 778 N.E.2d 816, 824 (Ind. 2002).


[13]   Moreover, counsel is given wide discretion in determining strategy and tactics,

       and therefore courts will accord these decisions deference. Timberlake v. State,

       753 N.E.2d 591, 603 (Ind. 2001). “A strong presumption arises that counsel

       rendered adequate assistance and made all significant decisions in the exercise

       of reasonable professional judgment.” Id. “Whether a lawyer performed

       reasonably under the circumstances is determined by examining the whole of

       the lawyer’s work on a case.” Oliver v. State, 843 N.E.2d 581, 591 (Ind. Ct.

       App. 2006), trans. denied.


             A. Failure to Inform Jury that Witnesses Received use
                Immunity and/or had Serious Charges Dropped
[14]   Speer contends that his trial counsel was ineffective for failing to inform the jury

       that Ferguson and Carnahan were granted use immunity 3 and that the State had

       dropped some criminal charges against Ferguson in return for his testimony.

       Under the circumstances of this case, however, Speer has failed to establish that

       he was prejudiced by any error his trial counsel might have made in this regard.




       3
         Use immunity is “where the testimony compelled of the witness may not be used at a subsequent criminal
       proceeding[.]” In re Caito, 459 N.E.2d 1179, 1183 (Ind. 1984).

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017      Page 8 of 17
[15]   First, the jury was all but explicitly told that both Ferguson and Carnahan

       received a benefit in exchange for their testimony against Speer. The jury was

       informed that, pursuant to the terms of his probation, Ferguson had to testify

       truthfully or he would be in violation of those terms. Similarly, the jury was

       informed that Carnahan pled guilty in another case to Class B felony

       methamphetamine manufacture and, pursuant to the terms of her plea

       agreement, was required to testify truthfully. We believe the jury was more

       than capable of putting two and two together and concluding that both

       Ferguson and Carnahan had received a benefit in exchange for agreeing to

       testify in other cases, including Speer’s. Moreover, the jury was aware that

       Ferguson was Speer’s co-defendant in this case, knew what charges Speer was

       charged with, and knew that the crimes to which Ferguson pled guilty were

       lesser in severity. The jury almost certainly did not have to be told that serious

       charges against Ferguson were dropped in at least partial exchange for his

       testimony against Speer. In short, the jury was already aware that neither

       Ferguson nor Carnahan were totally disinterested witnesses.


[16]   Moreover, our review of the record indicates that the evidence of Speer’s guilt

       was overwhelming even without Ferguson’s and Carnahan’s testimony.

       Detective Robinson followed Speer’s truck as he left Balser’s home, Balser

       being known to Detective Robinson because he had previously arrested him on

       a Clinton County warrant for methamphetamine manufacture. Police found

       extensive evidence of methamphetamine manufacture in the truck, including

       syringes and glass pipes, a piece of burnt aluminum foil, digital scales, a coffee


       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 9 of 17
       filter with methamphetamine on it, pill dough, tubing, funnels, a measuring

       cup, lithium batteries, multiple empty pseudoephedrine packaging, starter fluid

       bottles, bottles of lye, organic solvents, ammonia, sulfuric acid, Coleman fuel,

       an empty slat container, HCl generators, Walgreens receipts for the purchase of

       lithium batteries and pseudoephedrine, and a Menards receipt for bottles of lye.

       Speer could not plausibly claim to have been ignorant of the contents of the

       truck and trailer—or their nature—in light of the distinctive odor associated

       with methamphetamine manufacture emanating from the truck and

       surveillance video showing Speer purchasing lye at Menards. Even if Speer’s

       trial counsel was deficient in failing to inform the jury of Ferguson’s and

       Carnahan’s use immunity and the dropped charges against Ferguson, Speer has

       failed to establish that he was prejudiced thereby.


        B. Failure to Object to Speer’s Comment About Police Dogs
[17]   Speer also contends that his trial counsel was ineffective for failing to object to

       his statement to police that their canine units “suck” because they had sniffed

       his vehicles in the past and indicated the presence of contraband even though

       none had ever been found. Speer contends that an objection on the ground that

       his statement was evidence of a prior bad act would have been sustained. See

       Ind. Evidence Rule 4004(b)(1) (“Evidence of a crime, wrong, or other act is not

       admissible to prove a person’s character in order to show that on a particular

       occasion the person acted in accordance with the character.”). Speer argues

       that his statement revealed to the jury that he had prior contacts with police,

       who suspected him of drug activity during these contacts, and that police dogs

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 10 of 17
       had alerted on his vehicles. We conclude, however, that Speer’s statement does

       not amount to evidence of a prior bad act, as it contains no admission that he

       had ever previously committed a crime or been found to be in possession of

       illegal drugs. Speer’s statement is, if anything, an assertion that he had not been

       in possession of illegal drugs at various times in the past. Even if we take as

       true Speer’s assertion that police dogs falsely indicate the presence of drugs, that

       does not reflect poorly on Speer. Because a 404(b) objection would not have

       been sustained, Speer has failed to establish ineffective assistance of counsel in

       this regard.


           C. Failure to Object to Certain Evidence and Comments
                   About Methamphetamine “Subculture”
[18]   Speer contends that his trial counsel was ineffective for failing to object to the

       prosecutor’s comments during the State’s opening and closing arguments

       regarding a “methamphetamine subculture” in which Speer was involved.

       Moreover, Speer contends that his trial counsel should have objected to

       evidence regarding the actions of Balser, Carnahan, and Ferguson and brief

       references to four other persons. As the State points out, however, Speer’s trial

       counsel was not asked about why he did not object to the prosecutor’s

       statements or any of the evidence in question at the hearing on Speer’s PCR

       petition. Consequently, Speer has failed to produce any evidence that might

       overcome the presumption that the decisions were made for valid strategic

       reasons. See, e.g., Myers v. State, 33 N.E.3d 1077, 1099 (Ind. Ct. App. 2015) (“It

       is Myers’s burden to overcome the presumption that there were strategic


       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 11 of 17
       reasons for the decisions trial counsel made. If Myers cannot satisfy that

       burden, he cannot establish deficient performance.”), trans. denied.


            D. Failure to Raise Alleged Double Jeopardy Violation
[19]   Speer contends that his trial counsel was ineffective for failing to argue that his

       convictions for Class D felony methamphetamine possession and Class D

       felony maintaining a common nuisance violate prohibitions against double

       jeopardy. In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the Indiana

       Supreme Court held “that two or more offenses are the ‘same offense’ in

       violation of Article I, Section 14 of the Indiana Constitution, if, with respect to

       … the actual evidence used to convict, the essential elements of one challenged

       offense also establish the essential elements of another challenged offense.” Id.

       at 49-50.

               To show that two challenged offenses constitute the “same
               offense” in a claim of double jeopardy, a defendant must
               demonstrate a reasonable possibility that the evidentiary facts
               used by the fact-finder to establish the essential elements of one
               offense may also have been used to establish the essential
               elements of a second challenged offense.
       Id. at 53. “In determining the facts used by the fact-finder to establish the

       elements of each offense, it is appropriate to consider the charging information,

       jury instructions, and arguments of counsel.” Lee v. State, 892 N.E.2d 1231,

       1234 (Ind. 2008) (citing Spivey v. State, 761 N.E.2d at 832 (Ind. 2002);

       Richardson, 717 N.E.2d at 54 n.48).




       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 12 of 17
[20]   Based on evidence presented at trial, Speer’s conviction for methamphetamine

       possession could only have been based on evidence that he constructively

       possessed the coffee filter containing methamphetamine residue that was found

       inside the metal canister inside the black case located just outside the passenger

       door of the truck. The charge that Speer maintained a common nuisance was

       that he knowingly or intentionally maintained a vehicle that was used by

       persons “to unlawfully use controlled substances; or for unlawfully keeping,

       offering for sale, selling, delivering, or financing the delivery of controlled

       substances, or items of drug paraphernalia[.]” Direct Appeal Appellant’s App.

       p. 27; see also Ind. Code § 35-48-4-13 (now Ind. Code § 35-45-1-5). To support

       this conviction, the State presented evidence that Speer and Ferguson used

       methamphetamine in the truck at various times that day before obtaining the

       methamphetamine found on the coffee filter, used the truck to purchase and

       transport items they needed in methamphetamine manufacture, and had

       paraphernalia in the truck, and that Speer took methamphetamine

       manufacturing bottles from Balser’s residence and transported them in the

       truck. Moreover, the prosecutor’s argument with respect to the maintaining a

       common nuisance charge did not mention the methamphetamine found on the

       coffee filter but focused entirely on evidence of previous methamphetamine use

       and the transport of manufacturing materials.


[21]   We conclude that there was no reasonable possibility that the jury relied on the

       same actual evidence to sustain both guilty verdicts. In short, the evidence used

       to support the two convictions does not seem to overlap at all, much less to the


       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 13 of 17
       extent that it is reasonably possible that the actual evidence used to establish all

       of the essential elements of one crime was used to establish all of the essential

       elements of the other. Based on the evidence presented and arguments of the

       prosecutor, Speer has failed to establish that a double jeopardy challenge to his

       convictions for methamphetamine possession and maintaining a common

       nuisance would have been successful. Speer has failed to establish that he

       received ineffective assistance of trial counsel.


                II. Ineffective Assistance of Appellate Counsel
[22]   We review claims of ineffective assistance of appellate counsel using the same

       standard applicable to claims of trial counsel ineffectiveness. Ben-Yisrayl v.

       State, 729 N.E.2d 102, 106 (Ind. 2000). The petitioner must show that appellate

       counsel was deficient in his performance and that the deficiency resulted in

       prejudice. Id. Ineffective assistance claims at the appellate level of proceedings

       generally fall into three basic categories: (1) denial of access to an appeal; (2)

       waiver of issues; and (3) failure to present issues well. Bieghler v. State, 690

       N.E.2d 188, 193-95 (Ind. 1997). Speer’s claims fall into the second category,

       waiver of what he contends were meritorious claims.


                          A. Failure to Raise Methamphetamine
                          “Subculture” Comments and Evidence
[23]   Speer contends that his appellate counsel was ineffective for failing to challenge

       the prosecutor’s comments about a “methamphetamine subculture” on direct

       appeal or evidence regarding the activities of persons other than Speer. Because


       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 14 of 17
       neither the comments nor evidence was objected to below, the claim could only

       have been made on direct appeal as one of alleged fundamental error.


               Appellate courts may, on rare occasions, resort to the
               fundamental error exception to address on direct appeal an
               otherwise procedurally defaulted claim. But fundamental error is
               extremely narrow and available only when the record reveals a
               clearly blatant violation of basic and elementary principles,
               where the harm or potential for harm cannot be denied, and
               which violation is so prejudicial to the rights of the defendant as
               to make a fair trial impossible.

       Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008).


[24]   We conclude that Speer has failed to establish that this issue has any merit,

       much less that it is clearly stronger than the issues his appellate counsel did

       raise. We see nothing particularly wrong in arguing that Speer was a member

       of the “methamphetamine subculture” in a case where he was charged with

       conspiracy to manufacture methamphetamine. Furthermore, because the State

       alleged that Speer was part of a conspiracy, the actions of the other members of

       this conspiracy were relevant, even members not specifically named in the

       charge. Speer cites to no law requiring the State to mention all members of an

       alleged conspiracy in a charging information, and we are aware of none.


[25]   With that in mind, the only individuals other than Speer whose conduct was

       mentioned in any significant detail were Ferguson, Carnahan, Balser, and

       Douglas, and all of them were directly connected to this case and the charged

       crimes. Ferguson, who was Speer’s co-defendant, and Carnahan, were

       eyewitnesses who testified to Speer’s involvement in methamphetamine

       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 15 of 17
       manufacture and provision of Balser with necessary ingredients. The record

       shows that Balser was teaching Speer how to manufacture methamphetamine,

       Speer and Ferguson had just left Balser’s house when they were stopped,

       Douglas was co-owner of the truck, and Speer and Ferguson were on their way

       to see if Douglas had any Coleman fuel. All of this evidence is plainly relevant

       to establish that Speer was a member of a conspiracy to manufacture

       methamphetamine.


[26]   Speer also challenges the mentions of four other persons, including three who

       were charged as co-defendants in Carnahan’s case and one other, the person

       who allegedly introduced Balser and Carnahan. The mentions of these persons

       was very brief and contained no details of any crimes alleged against them.

       Any negative inferences the jury might have drawn from the brief mention of

       four persons is a matter of pure conjecture. Because Speer has failed to

       establish error in this regard, much less fundamental error, he has failed to

       establish that challenging the so-called “methamphetamine subculture”

       evidence on fundamental error grounds would have been successful.


             B. Failure to Raise Alleged Double Jeopardy Violation
[27]   We have already concluded that Speer’s trial counsel was not ineffective for

       failing to raise a double jeopardy claim regarding his convictions for

       methamphetamine possession and maintaining a common nuisance. Because

       Speer has failed to establish that this claim has merit, he cannot have been

       prejudiced by the appellate counsel’s failure to raise it on appeal. Speer has

       failed to establish that he received ineffective assistance of appellate counsel.
       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 16 of 17
[28]   We affirm the judgment of the post-conviction court.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1608-PC-1736 | February 6, 2017   Page 17 of 17
