MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                                Jun 03 2020, 5:46 am
regarded as precedent or cited before any                                CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court


estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEY FOR APPELLEE
Jennings Daugherty                                       Ellen H. Meilaender
Carlisle, Indiana                                        Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jennings Daugherty,                                      June 3, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         19A-PC-1824
        v.                                               Appeal from the
                                                         Wayne Superior Court
State of Indiana,                                        The Honorable
Appellee-Respondent                                      Gregory A. Horn, Judge
                                                         Trial Court Cause No.
                                                         89D02-1311-PC-26



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020                 Page 1 of 14
                                          Case Summary
[1]   Jennings Daugherty appeals the denial of his petition for post-conviction relief.

      We affirm.



                            Facts and Procedural History
[2]   The main issues in this appeal concern whether a warrant to search Daugherty’s

      house, 1106 Butler Street in Richmond, was supported by probable cause. A

      sergeant with the Richmond Police Department prepared a probable-cause

      affidavit on April 14, 2006. The affidavit contains numerous allegations to

      support the issuance of the search warrant. We break down these allegations

      into five categories:


      (1) Daugherty’s November 2004 arrest:


              On 11-27-04 the affiant arrested Jennings Daugherty for
              operating while intoxicated. During a subsequent search incident
              to arrest[,] a [m]arijuana cigarette was located. Mr. Daugherty
              was additionally charged with Possession of Marijuana.


      Daugherty v. State, 957 N.E.2d 676, 677 (Ind. Ct. App. 2011).


      (2) December 2005 search of 1106 Butler Street:


              On December 8th, 2005, the affiant helped serve a [s]earch
              warrant at 1106 Butler as a member of the Richmond SWAT
              team[ ] following an investigation by [o]fficers of the Richmond
              Police Department.



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020   Page 2 of 14
                                              *****


        While serving the [December 2005] warrant the affiant assisted in
        the recovery of several plants that the affiant recognized as
        [m]arijuana, paraphernalia used for the sale and consumption of
        [m]arijuana, and [c]ocaine. Officers also recovered two handguns
        and two [a]ssault [r]ifles with approximately one[-]thousand
        rounds of ammunition.


Id. at 677, 678.


(3) Neighbors’ statements to police about “considerable traffic” at
1106 Butler Street:


        On 4-5-06 the affiant spoke with neighbors, one house to the
        north of 1106 Butler Street. The neighbors advised that there has
        been considerable traffic to the rear of 1106 Butler Street with
        people entering the property at the rear through the gate of the
        privacy fence. The neighbors also advised that the people usually
        arrive and leave after a few minutes. They advised that the traffic
        usually increase[s] heavily after dark, usually after 9:00 P.M. This
        neighbor advised that this traffic is similar in volume to the time
        just before the [SWAT] Team [r]aided the house in December.
        The neighbor also advised that the resident[ ] he identified as
        Jennings Daugherty[ ] now has his trash picked up by a [b]rown
        older model Chevrolet pickup truck instead of leaving it out for
        the Sanitation Department trucks. He advised that Mr.
        Daugherty has been doing this since the SWAT Team [r]aided
        his house. The neighbor advised that Daugherty has installed
        new cameras on the rear of his house since the last [r]aid.


        As the affiant was leaving the alley he was approached by
        another neighbor who[ ] advised there has been considerable
        traffic to the house the affiant was just behind (1106 Butler). He
        advised that he sees cars park on NW J Street, and people go into
Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020   Page 3 of 14
        the house for a short amount of time. Names of [b]oth residents
        can be provided upon request.


Id. at 677.


(4) Police officers’ personal observations on April 14, 2006, of
incident underlying this appeal:


        On 4-14-06[,] Captain Shake was patrolling in the alley behind
        1106 Butler Street when he observed a blue Chevrolet pickup
        truck behind the residence. Captain Shake parked on NW L
        Street and watched the truck. Captain Shake observed a white
        male leave from behind the fence at the rear of 1106 Butler and
        approach the pickup. Captain Shake observed the male lift the
        hood of the truck and appear to work in the engine
        compartment....


        As Captain Shake was sitting on the lot of NW L Street with
        Officers Sutton and Longnecker (who were in the same unit),
        they observed the truck leave the lot of the Petro Gas Station on
        NW 5th Street. Officers Sutton and Longnecker began to follow
        the truck. Officer[ ] Sutton advised that he observed that the truck
        had a loud exhaust in violation of state law. The officers ran the
        license information from the registration from the plate. Officers
        observed a previous conviction for possession of [c]ocaine for
        William K. Smith on his driving record.


        At approximately 12:25 P.M. Officers Sutton and Longnecker
        performed a traffic stop on said truck at NW 14th and Holsapple
        Road.... The truck was found to be registered to William K.
        Smith at 2712 C Ave., New Castle, Indiana.


        Officer Sutton performed a routine traffic investigation, which
        included verification of the exhaust violation and license status.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020   Page 4 of 14
        While Officer Sutton was in this process Captain Shake spoke
        with Detective Cantrell of the Henry County Drug Task Force.
        Detective Cantrell advised that he is familiar with William K.
        Smith and an association with drugs. Captain Shake also
        observed that William K. Smith had a previous conviction for
        Possession of Cocaine on his driving record.


        Officer Sutton concluded his traffic investigation and gave Smith
        the paperwork for the truck. As he did so Officer Sutton advised
        William K. Smith that he would like to continue to talk to him
        about another issue[;] however [,] Officer Sutton restated that it
        was consensual and that Smith was [f]ree to leave. Officer Sutton
        advised that William Smith was agreeable to that. At that point
        Officer Longnecker approached Sutton and advised him of the
        previously mentioned information that Captain Shake
        discovered.


        Officer Sutton then ... asked Mr. Smith to step from the vehicle
        for a search of his person. As Mr. Smith was doing this, Officer
        Sutton asked for consent to search the vehicle and advised him
        that he could refuse. Officer Sutton advised that William K.
        Smith gave him verbal consent to search the vehicle in the
        presence of Officer Longnecker.


        During the search of Mr. Smith’s person Officer Sutton found
        $500.00 in cash in his right front pocket and $326.00 in cash in
        his left front pocket.


        Mr. Smith stood between Officer Sutton’s unit and his vehicle as
        Officer Longnecker and Captain Shake search[ed] the vehicle.
        Captain Shake searched the engine compartment where he had
        observed William K. Smith earlier working. Captain Shake
        removed the wing nut from an aftermarket air breather on the
        carburetor. There Captain [S]hake located a white and blue
        pharmacy bag. In the bag Captain [S]hake located a plastic

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020   Page 5 of 14
        container similar to a film canister containing several pills and a
        clear plastic baggie containing several pills that was tied off.
        There was also a clear plastic baggie containing an off[-]white
        powder. In a subsequent taped statement William K. Smith
        advised that he placed the items in the air intake breather because
        he had observed Captain Shake watching him. Officer Sutton
        advised that this is a common place to transport illegal narcotics
        based on his Police Highway Interdiction Training.


        Officer Longnecker contacted Reid Pharmacy and found that the
        pills in the plastic container contained [sic] [sixty-four] (64) 40-
        [m]illigram Oxycontin tablets and the baggie contained [seventy]
        (70) 80-[m]illigram Oxycontin tablets and a Schedule II
        Controlled Substance. The off[-]white powder tested positive for
        cocaine in a Cobalt Reagent fi[el]d tester. Later the powder
        weighed approximately 14 grams at Richmond Police
        headquarters.


Id. at 678-79.


(5) William K. Smith’s statements to police about the April 14, 2006
incident:


        William K. Smith was questioned by [O]fficer Sutton about the
        Oxycontin and [c]ocaine and made several penal statements
        against his self-interest at Richmond Police Headquarters. Mr.
        Smith advised that he had purchased the Oxycontin in
        Indianapolis and had purchased the [c]ocaine from a male he
        knew as “Will.” I know from the service of the previous search
        warrant at 1106 Butler Street that Jennings Daugherty goes by
        the nickname of “Will.” Mr. Smith could not remember [s]treet
        names initially but was able to direct Officer Sutton to the house
        as Officer Sutton wrote out a map of the area. As they were going
        through the process, Mr. Smith was able to remember that the
        house was on Butler Street.

Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020   Page 6 of 14
              Mr. Smith described the house as a tan house with a privacy
              fence in the rear. Mr. Smith described the interior of the house....
              The affiant recognizes the description as the interior of 1106
              Butler Street based on his previous entry into that address....


              In a taped [s]tatement Mr. Smith advised that he has purchased
              [c]ocaine from that same individual at that residence three times
              in the last thirty days. Mr. Smith advised that he enters through
              the gate in the natural wood privacy fence at the rear of the
              residence. Mr. Smith stated that he enters the rear door of the
              kitchen. He described the living room being off to the right
              through an arch. Mr. Smith advised that “Will” goes up the
              stairs, which are next to the two rooms to the left, and gets
              [c]ocaine for the transaction. [T]his is consistent with what the
              affiant has observed of the interior of 1106 Butler Street.


              In a search incident to arrest officers located another large
              amount of cash in Mr. Smith’s wallet. Officer Sutton found
              $600.00 folded in one pocket. He found $500.00 folded in
              another pocket of the wallet. There was $335.00 in cash found in
              the traditional money slot of the wallet. Officer Longnecker
              overheard Mr. Smith say that he only makes $11,000.00 a year.


      Id. at 679.


[3]   The trial court granted the sergeant’s request for a search warrant, and

      Daugherty’s house was searched the next day, April 15, 2006. Police officers

      discovered five separate packages of cocaine, digital scales, several plastic

      baggies, and other indications that Daugherty was running a “notable” drug

      operation from his house. Id. at 680.




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020   Page 7 of 14
[4]   The next day, the State charged Daugherty with Class B felony possession of

      cocaine and Class D felony maintaining a common nuisance.1 The State also

      alleged that Daugherty was a habitual offender. In January 2009, Daugherty

      filed a motion to suppress the evidence found during the search of his house,

      arguing that the search warrant was not supported by probable cause. See

      Appellant’s Direct Appeal App. pp. 94-104. The trial court denied Daugherty’s

      motion to suppress. At the jury trial, Daugherty renewed his objection to the

      admission of the evidence found during the search of his house, which the trial

      court overruled. The jury found Daugherty guilty of both counts and also found

      him to be a habitual offender. The trial court sentenced him to an aggregate

      term of twenty-four-and-a-half years.


[5]   On direct appeal, Daugherty challenged the admission of evidence found

      during the search of his house. He argued that the search warrant was not

      supported by probable cause and challenged three parts of the affidavit: (1) the

      December 2005 search of his house; (2) the neighbors’ statements to police

      about “considerable traffic” at his house; and (3) Smith’s statements to police

      about the April 14, 2006 incident. Daugherty, 957 N.E.2d at 681. We held that

      even if these parts were excluded from the affidavit, the police officers’ personal

      observations of Smith on April 14, 2006—alone—supported the issuance of the

      search warrant:




      1
       The State also charged Daugherty with Class A felony dealing cocaine, but it later dismissed that count
      because the cocaine used to support that charge was inadvertently destroyed.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020                    Page 8 of 14
              On April 14, 2006, officers witnessed Smith exit Daugherty’s
              home. The officers then observed Smith access the engine
              compartment of his truck, a location which they knew to be
              consistent with the hidden transportation of contraband. While
              still under observation, Smith drove to a nearby gas station,
              where the officers initiated a traffic stop. During the course of
              that traffic stop, officers searched the engine compartment of
              Smith’s vehicle—which they had just witnessed him access at
              Daugherty’s residence—wherein they discovered contraband.
              For good measure, the officers also discovered more than $800 in
              cash in Smith's pockets and another $1435 in cash in Smith’s
              wallet. Based on those unchallenged observations alone, the
              “common-sense” conclusion by the issuing magistrate was that
              there existed a “fair probability that contraband or evidence of a
              crime” would be found at Daugherty’s residence. As such,
              sufficient probable cause supported the issuance of the search
              warrant, and we affirm the trial court’s denial of Daugherty’s
              attempts to have the evidence excluded.


      Id. (emphasis added). Accordingly, we affirmed Daugherty’s convictions.


[6]   In 2015, Daugherty filed a pro se petition for post-conviction relief, which he

      amended in 2018, raising claims of ineffective assistance of trial and appellate

      counsel. At the August 2018 evidentiary hearing, Daugherty’s trial and

      appellate counsel testified. In addition, Daugherty identified several exhibits,

      but he never asked the post-conviction court to admit them. Accordingly, they

      were not admitted.


[7]   In February 2019, while his petition was still pending, Daugherty asked the

      post-conviction court to correct some “omissions” in the transcript of his

      evidentiary hearing. Appellant’s P-C App. Vol. III p. 71. The post-conviction


      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020   Page 9 of 14
      court listened to the recording and corrected some “typographical errors” but

      otherwise found that the transcript “fully and accurately transcribed the

      testimony as presented.” Id. at 73. In July 2019, the post-conviction court

      entered an order denying Daugherty relief.


[8]   Thereafter, Daugherty, pro se, filed a notice of appeal. He asked the post-

      conviction court for a copy of the electronic recording of his evidentiary

      hearing; however, the court, noting that it had already listened to the recording

      and made some minor corrections to the transcript, found that there was “no

      just or reasonable reason to replace the transcript with a copy of the electronic

      recording” and denied Daugherty’s request. Id. at 75. In September 2019,

      Daugherty asked this Court to correct the transcript of his evidentiary hearing

      or order the post-conviction court to provide him a copy of the electronic

      recording, but we denied his request. See Order, No. 19A-PC-1824 (Ind. Ct.

      App. Sept. 11, 2019). In February 2020, Daugherty again asked this Court to

      correct the transcript of his evidentiary hearing or allow him to purchase a

      recording of the hearing, and we again denied his request. See Order, No. 19A-

      PC-1824 (Ind. Ct. App. Mar. 10, 2020).



                                 Discussion and Decision
[9]   Daugherty appeals the denial of his petition for post-conviction relief. A

      defendant who files a petition for post-conviction relief has the burden of

      establishing the grounds for relief by a preponderance of the evidence. Hollowell

      v. State, 19 N.E.3d 263, 268-69 (Ind. 2014). If the post-conviction court denies

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020   Page 10 of 14
       relief, and the petitioner appeals, the petitioner must show that the evidence

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

       post-conviction court. Id. at 269.


                               I. Post-Conviction Court Error
[10]   Daugherty contends that the post-conviction court committed two procedural

       errors. First, Daugherty argues that the post-conviction court erred by not

       admitting his exhibits into evidence. We initially note that Daugherty does not

       tell us what exhibits the court should have admitted. However, they appear to

       be records from his previous cases. In any event, Daugherty claims that by not

       admitting the exhibits, the post-conviction court was making “an all out effort”

       to keep this Court from seeing them because then we would know that the trial

       court did not actually have probable cause to issue the search warrant.

       Appellant’s Br. p. 36. There is simply no evidence to prove that the post-

       conviction court had such a plan. Instead, the record reveals that while

       Daugherty identified his exhibits, he never asked the court to admit them. After

       the first witness testified, the court mentioned that none of the exhibits

       identified during the testimony had been admitted, but Daugherty didn’t take

       the hint. See P-C Tr. p. 36; see also Appellant’s P-C App. Vol. II p. 24 (post-

       conviction-court order: “Daugherty made reference to numerous exhibits

       during the postconviction relief hearing but never offered their admittance into

       evidence and none were, ultimately, admitted.”). Moreover, as we explain

       more fully below, even assuming that Daugherty’s past cases do not establish



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020   Page 11 of 14
       probable cause to issue the search warrant, there is still sufficient evidence to

       support the issuance of the search warrant.


[11]   Daugherty next argues that the post-conviction court erred “when it left out

       relevant parts of the PCR hearing dialogue from the PCR transcripts.”

       Appellant’s Br. p. 36. This issue has been addressed twice by the post-

       conviction court and now three times by this Court. Simply put, Daugherty has

       given us no reason to believe that the transcript was not “fully and accurately

       transcribed,” as found by the post-conviction court.


                          II. Ineffective Assistance of Counsel
[12]   Daugherty next contends that he received ineffective assistance of counsel.

       When evaluating a defendant’s ineffective-assistance-of-counsel claim, we apply

       the well-established, two-part test from Strickland v. Washington, 466 U.S. 668

       (1984). Bobadilla v. State, 117 N.E.3d 1272, 1280 (Ind. 2019). The defendant

       must prove that (1) counsel rendered deficient performance, meaning counsel’s

       representation fell below an objective standard of reasonableness as gauged by

       prevailing professional norms, and (2) counsel’s deficient performance

       prejudiced the defendant, i.e., but for counsel’s errors, there is a reasonable

       probability that the result of the proceeding would have been different. Id.


[13]   Daugherty first argues that his trial counsel was ineffective for failing to get the

       trial court to disregard four parts of the probable-cause affidavit: (1) his

       November 2004 arrest; (2) the December 2005 search of his house; (3) the

       neighbors’ statements to police about “considerable traffic” at his house; and (4)

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020   Page 12 of 14
       Smith’s statements to police about the April 14, 2006 incident. See Appellant’s

       Br. pp. 18-27. Daugherty, however, cannot establish prejudice. On direct

       appeal, this Court held that even if the other parts of the probable-cause

       affidavit were disregarded, the police observations of Smith alone supported the

       issuance of the search warrant. Daugherty, 957 N.E.2d at 681. Notably,

       Daugherty did not seek rehearing or transfer. Because there was sufficient

       probable cause in the affidavit to support the issuance of the search warrant

       even disregarding the other parts, there is no reasonable probability that the

       motion to suppress would have been granted. Trial counsel was not ineffective

       on this ground.


[14]   Daugherty next argues that his appellate counsel was ineffective for “fail[ing] to

       contact [him] or his trial counsel prior to producing the Appellant’s Brief on

       Direct Appeal.” Appellant’s Br. p. 6; see also id. at 16, 41. The record, however,

       does not support this claim. At the post-conviction hearing, appellate counsel

       testified that he was “sure” he talked with trial counsel about possible issues to

       raise on appeal, as was his policy. See P-C Tr. pp. 38-39. Appellate counsel also

       testified that he thought he sent Daugherty a letter in prison, as was his policy,

       and that Daugherty had sent him “a couple of letters” about what issues to raise

       on appeal. Id. at 39. Daugherty has failed to establish that appellate counsel was




       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020   Page 13 of 14
       ineffective for failing to consult with him or his trial counsel. We therefore

       affirm the post-conviction court.2


[15]   Affirmed.


       May, J., and Robb, J., concur.




       2
        Daugherty also raises claims of prosecutorial misconduct and “abuse of judicial discretion.” Appellant’s Br.
       p. 42. However, these freestanding issues are not available on post-conviction review. See Martin v. State, 760
       N.E.2d 597, 599 (Ind. 2002).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-1824 | June 3, 2020                     Page 14 of 14
