MEMORANDUM DECISION                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Jul 24 2017, 9:29 am

this Memorandum Decision shall not be                                           CLERK
                                                                            Indiana Supreme Court
regarded as precedent or cited before any                                      Court of Appeals
                                                                                 and Tax Court
court except for the purpose of establishing
the defense of res judicata, 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
John Pinnow                                               Ellen H. Meilaender
Deputy Public Defender                                    Supervising Deputy
Indianapolis, Indiana                                     Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth R. Cronin,                                        July 24, 2017
Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          62A01-1703-PC-624
        v.                                                Appeal from the Perry Circuit
                                                          Court
State of Indiana,                                         The Honorable M. Lucy Goffinet,
Appellee-Respondent.                                      Judge.
                                                          The Honorable Karen A. Werner,
                                                          Magistrate.
                                                          Trial Court Cause No.
                                                          62C01-1105-PC-299



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017                 Page 1 of 13
                                           Case Summary
[1]   On April 24, 2008, Cronin was charged in a twenty-count charging information

      with dealing in methamphetamine and various related offenses. On April 28,

      2008, Cronin was charged with two additional counts of being a serious violent

      felon in possession of a firearm. Following a bifurcated trial in March of 2009,

      Cronin was found guilty as charged on all twenty-two counts. On April 7,

      2009, the trial court imposed a forty-five-year sentence for counts 1-20 and

      count 22, and a consecutive fifteen-year sentence for count 21, resulting in a

      total sentence of sixty years.


[2]   This court affirmed Cronin’s convictions on direct appeal. Cronin filed a

      petition for post-conviction relief (“PCR”) on Mary 13, 2011, and an amended

      post-conviction petition on April 11, 2015. The post-conviction court

      summarily denied relief in October of 2015, but this Court remanded to the

      post-conviction court with instructions. On October 11, 2016, the post-

      conviction court held an evidentiary hearing. On March 17, 2017, the post-

      conviction court issued written findings of fact and conclusions of law denying

      Cronin’s PCR petition. Because Cronin has failed to meet his burden of

      showing that he received ineffective assistance of trial and appellate counsel,

      and his due process claim is barred by res judicata, we affirm.



                            Facts and Procedural History
[3]   The facts as they were found by this court on direct appeal are as follows:


      Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 2 of 13
        On April 2, 2008, Tell City Police Officer Marty Haughee
        conducted a probation search at the home of Derrick Stiles. The
        search produced evidence of drug activity in his basement;
        specifically, police found paraphernalia used to manufacture
        methamphetamine (“meth”). In an attempt to better his legal
        situation and avoid probation revocation, Stiles agreed to provide
        police with information regarding the manufacture of meth in the
        area; this included information about Cronin’s drug activity.
        Based on this information, police obtained warrants to search
        two of Cronin’s properties.


        On April 18, 2008, state and local law enforcement officers,
        accompanied by two federal Alcohol, Tobacco, Firearms and
        Explosives (“ATF”) agents, simultaneously executed the
        warrants upon both of Cronin’s properties. Cronin was mowing
        the lawn of the Aster Road property when the police arrived to
        conduct the search there. In the living room, police discovered a
        metal cylinder containing meth, a glass pipe, marijuana,
        aluminum foil containing burnt residue, a loaded .380 caliber
        semi-automatic weapon, a loaded .32 caliber handgun, and
        additional ammunition. In the kitchen, they found coffee filters
        containing meth residue. In the bedroom, they found burnt
        marijuana joints, rolling papers, Cronin’s casino rewards card,
        and mail addressed to Cronin and his wife at the address of his
        other searched property on Highwater Road. Under the
        mattress, police found a loaded short-barrel twelve-gauge
        shotgun. In a closet, they found a digital scale, a plastic bag of
        cutting agent, two shotguns, two .22 caliber rifles, shotgun shells,
        and other ammunition. In the garage, they discovered coffee
        filters, battery stoppings, a package of lithium batteries, empty
        boxes of medications containing ephedrine or pseudoephedrine,
        an empty bottle of Coleman camp fuel, an empty bottle of Heat
        [sic], an empty can of starter fluid, a glass bottle containing a
        chunky white substance, a plastic spoon containing white
        residue, a plastic soda bottle with a modified lid and tubing
        attached to create an HCL generator, additional plastic tubing,

Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 3 of 13
        8.76 grams of meth, and propane tanks containing anhydrous
        ammonia. Police arrested Cronin and discovered $9,413.00 on
        his person.


        In their simultaneous search of the Highwater Road property,
        police found Cronin’s truck to contain a metal cylinder housing
        plastic bags containing 8.96 and 4.27 grams of meth and a plastic
        bag containing .97 grams of cocaine. They also discovered a box
        of plastic sandwich bags on the floor board. In the bedroom,
        police discovered receipts for the purchase of meth precursor
        items, a butane torch, a water bottle containing a secret
        compartment, a glass pipe containing residue, a marijuana
        “blunt,”.10 grams of meth on the dresser, .36 grams of meth in a
        metal tin, and a bank statement and prescription pill bottle in
        Cronin’s name at that address. Under the bed, they found a
        loaded .45 caliber handgun and ammunition. The garage
        contained a plethora of items, including a loaded Glock handgun
        with two extra magazines, additional ammunition of various
        calibers, a coffee grinder, a coffee filter containing 13.38 grams of
        meth, additional coffee filters, radio frequency detectors, two
        night vision scopes, containers of salt, pills containing
        pseudoephedrine, liquid fire, propane torches, an air purifying
        respirator, a prescription pill bottle bearing Cronin’s name and
        containing marijuana, a glass pipe with residue, rolling papers,
        and a false dictionary with a hidden compartment containing
        meth, marijuana, a hollow pen, and a check card book
        containing Cronin’s name. In the rafters, police found another
        plastic bag containing meth.


        On April 24, 2008, the State charged Cronin with the following
        twenty counts: four counts of class A felony dealing
        methamphetamine, four counts of class C felony
        methamphetamine possession, two counts of class C felony
        possession of anhydrous ammonia, two counts of class C felony
        possession of meth precursors, two counts of class D felony
        maintaining a common nuisance, two counts of class A

Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 4 of 13
              misdemeanor marijuana possession, two counts of class A
              misdemeanor possession of paraphernalia, and two counts of
              class A misdemeanor illegal storage of anhydrous ammonia. On
              April 28, 2008, the State amended the information to include two
              counts of class B felony unlawful possession of a firearm by a
              serious violent felon.


              On August 27, 2008 and January 22, 2009, Cronin filed motions
              to suppress the evidence produced from the searches on the basis
              that the search warrants were not supported by probable cause.
              The trial court denied both motions following hearings. On
              February 27, 2009, the State filed a motion in limine seeking to
              limit testimony by federal ATF agents involved in the
              investigation. In response, Cronin filed a motion for continuing
              objection to the evidence discovered pursuant to the search
              warrants, which the court granted on March 3, 2009. A five-day
              jury trial commenced that same day. On March 4, 2009, Cronin
              moved for a mistrial based on the trial court’s enforcement of the
              federal ATF agents’ testimonial privilege. The trial court denied
              his motion on March 5, 2009. On March 9, 2009, the jury found
              Cronin guilty as charged on counts one through twenty. After a
              bifurcated phase of the trial, the jury found him guilty of two
              counts of unlawful possession of a firearm by a serious violent
              felon. On April 7, 2009, the trial court sentenced him to an
              aggregate term of sixty years.


      Cronin v. State, No. 62A01-0904-CR-186, slip op. 1-2 (Ind. Ct. App.

      January 25, 2010).


[4]   Cronin was represented by attorney Michael McDaniel both at his trial and in

      his subsequent direct appeal. On direct appeal, Cronin claimed that the trial

      court erroneously denied the mistrial motion because of the denial of his

      constitutional rights. This court held that the trial court properly denied the

      Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 5 of 13
      motion. This court also held that the search warrants were supported by

      probable cause and that the jury was properly instructed.


[5]   Cronin subsequently filed a PCR petition raising three claims: 1) Cronin’s trial

      counsel was ineffective for not knowing and following the applicable federal

      law to obtain authorization for the ATF agents to testify regarding the trace

      history of other firearms; 2) Cronin’s appellate counsel was ineffective for not

      arguing that his aggregate sixty-year sentence exceeded the maximum allowed

      on the basis that this was a single episode of criminal conduct; and 3) Cronin

      was denied his rights to present a defense and cross-examine witnesses because

      the ATF agents’ testimony was limited. During the post-conviction hearing,

      Cronin presented evidence that in 2013 and 2015 he sent the appropriate

      requests to the Department of Justice requesting the trace history results from

      the other firearms and both times the requests were denied because the ATF has

      been prohibited by statute from disclosing such information since 2003. The

      post-conviction court denied Cronin’s petition on March 17, 2017.



                                 Discussion and Decision
                                     I. Standard of Review
[6]   Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739,

      745 (Ind. 2002). Therefore, in order to prevail, a petitioner must establish his

      claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5);

      Stevens, 770 N.E.2d at 745. When appealing from a denial of a PCR petition, a

      petitioner must convince this court that the evidence, taken as a whole, “leads
      Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 6 of 13
      unmistakably to a conclusion opposite that reached by the post-conviction

      court.” Stevens, 770 N.E.2d at 745. “It is only where the evidence is without

      conflict and leads to but one conclusion, and the post-conviction court has

      reached the opposite conclusion, that its decision will be disturbed as contrary

      to law.” Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied.

      The post-conviction court is the sole judge of the weight of the evidence and the

      credibility of the witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

      We therefore accept the post-conviction court’s findings of fact unless they are

      clearly erroneous but give no deference to its conclusions of law. Id.


                   II. Ineffective Assistance of Trial Counsel
[7]   Post-conviction proceedings do not afford a petitioner with a super-appeal, and

      not all issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001).

      A claim of ineffective assistance of trial counsel is properly presented in a post-

      conviction proceeding if such claim is not raised on direct appeal. Id. A claim

      of ineffective assistance of counsel is an appropriate issue for post-conviction

      review. Id.


[8]   “The right to effective counsel is rooted in the Sixth Amendment of the United

      States Constitution.” Taylor v. State, 840 N.E.2d 324, 331 (Ind. 2006). “The

      Sixth Amendment recognizes the right to the assistance of counsel because it

      envisions counsel’s playing a role that is critical to the ability of the adversarial

      system to produce just results.” Strickland v. Washington, 466 U.S. 668, 685

      (1984). We evaluate such claims under the two-part test announced in


      Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 7 of 13
      Strickland. Wheeler v. State, 15 N.E.3d 1126, 1129 (Ind. Ct. App. 2014). A

      successful claim for ineffective assistance of counsel must satisfy two elements:

              First, the defendant must show deficient performance:
              representation that fell below an objective standard of
              reasonableness, committing errors so serious that the defendant
              did not have the “counsel” guaranteed by the Sixth Amendment.
              Second, the defendant must show prejudice: a reasonable
              probability (i.e. a probability sufficient to undermine confidence
              in the outcome) that, but for counsel’s errors, the result of the
              proceeding would have been different. McCary v. State, 761
              N.E.2d 389, 392 (Ind. 2002) (citing Strickland v. Washington, 466
              U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
              When considering the first prong of the Strickland test, deficient
              performance, the question is not whether the attorney could—or
              even should—have done something more. Rather, the question
              is whether the attorney’s performance amounted to a reasonably
              competent defense or did not. As a result, the inquiry must focus
              on what the attorney actually did, and “[i]solated mistakes, poor
              strategy, inexperience, and instances of bad judgment do not
              necessarily render representation ineffective.” Timberlake v. State,
              753 N.E.2d 591, 603 (Ind. 2001). Moreover, because “[c]ounsel
              is afforded considerable discretion in choosing strategy and
              tactics, . . . [a] strong presumption arises that counsel rendered
              adequate assistance.” Id.


      Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). “The failure to establish

      either prong will cause the claim to fail.” Vermilion v. State, 719 N.E.2d

      1201, 1208 (Ind. 1999).



[9]   Cronin argues that his trial counsel was ineffective for failing to follow the

      procedures in 28 C.F.R. Sections 16.22-16.28. Specifically, Cronin argues that

      Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 8 of 13
       his trial counsel should have requested that the U.S. Attorney broaden the

       authorization of the ATF agents to testify about the gun-trace history and the

       investigation regarding all of the firearms seized. Cronin, however, admitted in

       his own brief that the ATF agents’ testimony regarding the trace evidence was

       limited by federal law. See Appellant’s Br. p. 31. That is, ATF has been

       prohibited by statute from providing this information since 2003. See 28 C.F.R.

       §§ 16.22-16.28. Therefore, any efforts to get authorization to expand the scope

       of their testimony would have been futile. Moreover, Cronin has not shown

       how the proposed testimony would have meaningfully furthered his defense or

       changed the outcome of the case. The record reveals extensive evidence that

       Cronin owned the two residences where the guns and drugs were found.

       Cronin has failed to meet his burden of showing he received ineffective

       assistance of trial counsel.


              III. Ineffective Assistance of Appellate Counsel
[10]   Cronin contends that his appellate counsel was ineffective for failing to raise a

       “single episode of criminal conduct” challenge to his sentence on direct appeal.

       The standard of review for a claim of ineffective assistance of appellate counsel

       is the same for trial counsel. Allen v. State, 749 N.E.2d 1158, 1166 (Ind. 2001).


               Therefore, [t]o prevail on an ineffective assistance of counsel
               claim, [the petitioner] must show both deficient performance and
               resulting prejudice. As for the first prong-counsel’s performance-
               we presume that counsel provided adequate representation.
               Accordingly, [c]ounsel is afforded considerable discretion in
               choosing strategy and tactics, and we will accord that decision
               deference. The second prong-the prejudicial effect of counsel’s
       Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 9 of 13
               conduct-requires a showing that there is a reasonable probability
               that, but for counsel’s unprofessional errors, the result of the
               proceeding would have been different. A reasonable probability
               is a probability sufficient to undermine confidence in the
               outcome.


       Id. at 166-67 (citations and quotations omitted).



[11]   Indiana courts recognize three basic categories of alleged appellate counsel

       ineffectiveness: 1) denying access to an appeal; 2) failing to raise an issue on

       appeal; and 3) failing to present an issue completely and effectively. Bieghler v.

       State, 690 N.E.2d 188, 193-95 (Ind. 1997). Ineffectiveness is rarely found when

       the issue is failure to raise a claim on direct appeal. Id. at 193. “One reason for

       this is that the decision of what issues to raise is one of the most important

       strategic decisions to be made by appellate counsel.” Id. (internal citation

       omitted). “Experienced advocates since time beyond memory have

       emphasized the importance of winnowing out weaker arguments on appeal and

       focusing on one central issue if possible, or at most a few key issues.” Jones v.

       Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983).

       “Accordingly, when assessing these types of ineffectiveness claims, reviewing

       courts should be particularly deferential to counsel’s strategic decision to

       exclude certain issues in favor of others, unless such a decision was

       unquestionably unreasonable.” Bieghler, 690 N.E2d at 194.


[12]   The post-conviction court concluded that



       Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 10 of 13
               34. In paragraph 9(B)(1), Cronin alleges he was denied the
               effective assistance of appellate counsel for not arguing on appeal
               regarding the cap on consecutive sentences under I.C. 35-50-1-
               2(c).

               35. An episode of criminal conduct means offenses or a
               connected series of offenses that are closely related in time, place,
               and circumstance. I.C. 35-50-2-1(b).

               36. Whether the charged offenses constitute a single episode of
               criminal conduct, the focus is on the timing of the offenses and
               the simultaneous and contemporaneous nature, if any, of the
               crimes. Reed v. State, 856 N.E.2d 1189 (Ind. 2006).

               37. Cronin operated two separate, independent and distinct
               criminal enterprises at two different locations several miles apart.
               The crimes committed at Cronin’s Highwater Road property and
               Aster Road property were not closely related in time, place and
               circumstance.

[13]   Cronin argues that his sentence violates the single episode limitation on

       consecutive sentences. To constitute a single episode, the offenses must occur

       simultaneously or contemporaneously. See Reed, 856 N.E.2d at 1200. “Where

       each crime takes place at separate times and at separate places, they do not

       constitute a single episode of criminal conduct.” Hope v. State, 834 N.E.2d 713,

       716 (Ind. Ct. App. 2005).


[14]   Cronin’s claim that his offenses constitute a single episode is based upon the

       facts that the State used the same chemist to test the drugs recovered from both

       locations, the charging information used similar language for the offenses at

       both locations, and the search warrants for the two locations were executed

       simultaneously. Cronin cites to no authority, and we are aware of none,


       Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 11 of 13
       suggesting that having these types of similarities or overlap within two

       investigations somehow establishes a single episode of criminal conduct.

       Consequently, Cronin has failed to meet his burden of proving that he received

       ineffective assistance of appellate counsel.


                                           IV. Res Judicata
[15]   Cronin also raises a freestanding claim that he was denied his due process right

       to present a defense because of the limitations on the ATF agents’ testimony.

       “Post-conviction proceedings do not afford criminal defendants the opportunity

       for a ‘super-appeal.’ Rather, post-conviction proceedings provide defendants

       the opportunity to raise issues that were not known at the time of the original

       trial or that were not available on direct appeal.” State v. Holmes, 728 N.E.2d

       164, 167 (Ind. 2000). Consequently, when


               this Court decides an issue on direct appeal, the doctrine of res
               judicata applies, thereby precluding its review in post-conviction
               proceedings. The doctrine of res judicata prevents the repetitious
               litigation of that which is essentially the same dispute. A
               petitioner for post-conviction relief cannot escape the effect of
               claim preclusion merely by using different language to phrase an
               issue and define an alleged error.


       Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000).


[16]   Despite his attempts to repackage the issue, Cronin concedes that “the claim

       was presented on direct appeal and resolved against” him. Appellant’s Br. p.

       30. Because this issue has already been litigated once, Cronin is precluded from

       litigating it a second time in post-conviction proceedings.
       Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 12 of 13
                                               Conclusion
[17]   The post-conviction court properly rejected Cronin’s claims of ineffective

       assistance of trial counsel and ineffective assistance of appellate counsel. We

       also conclude that Cronin’s due process claim is barred by res judicata because it

       was already litigated on direct appeal. The judgment of the post-conviction

       court is affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 62A01-1703-PC-624 | July 24, 2017   Page 13 of 13
