Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

                                                           FILED
                                                        Jul 31 2012, 9:25 am
ATTORNEY FOR APPELLANT:
SUZY ST. JOHN                                                   CLERK
                                                              of the supreme court,
                                                              court of appeals and
Indianapolis, Indiana                                                tax court




                              IN THE
                    COURT OF APPEALS OF INDIANA

JOSHUA WOTOWIEC,                                )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )     No. 49A05-1111-CR-609
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable William J. Nelson, Judge
                           Cause No. 49F07-1106-CM-46490


                                      July 31, 2012

            MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

       Appellant-Defendant, Joshua Wotowiec (Wotowiec), appeals his conviction for

carrying a handgun without a license, a Class A misdemeanor, Ind. Code § 35-47-2-1.

       We affirm.

                                          ISSUE

       Wotowiec raises the following issue on appeal: Whether Wotowiec was denied

effective assistance of trial counsel.

                         FACTS AND PROCEDURAL HISTORY

       On June 27, 2011, Indianapolis Police Officer Malachi West (Officer West) was

dispatched to a trailer park lot located at 3023 W. Morris Street, Indianapolis, Indiana, in

response to a report of a loud party and the presence of a person with a handgun.

According to the radio dispatch, the person with the handgun was a white male named

Josh who wore a black colored shirt. Officer West pulled his vehicle into the trailer park

and observed five people on the front porch of a trailer and one male, later identified as

Wotowiec, wearing a black shirt run into the trailer. Officer West then approached the

trailer and patted down everyone on the porch for weapons.

       Officer West requested permission from Traci Denis (Denis), who lived at the

trailer, to enter and search for Wotowiec, asking her why he had acted suspiciously.

After initially objecting, she gave permission. Officer West entered the trailer and found

Wotowiec in the back bedroom, wearing a black shirt and lying face down on a bed with

the lights off. Wotowiec’s eyes were closed and one of his arms hung off the side of the

                                             2
bed, while the other arm was near the mattress. After asking Wotowiec to stand up,

Officer West patted him down for weapons. Officer West found a magazine and loose

bullets along with a loaded magazine in Wotowiec’s pockets. Officer West also found a

loaded gun hidden between the mattress and boxspring. Wotowiec was then handcuffed.

Although he initially denied ownership of the gun, after receiving Miranda warnings,

Wotowiec explained that someone had given the gun to him earlier. Unable to verify

Wotowiec’s story, Officer West arrested him.

       On June 29, 2011, the State filed an Information charging Wotowiec with Count I,

carrying a handgun without a license, I.C. § 35-47-2-1. On November 1, 2011, a bench

trial was conducted. During Officer West’s testimony, Wotowiec’s counsel made a

motion to suppress from the search and seizure of his person, arguing that it was the

result of an invalid, warrantless search. In particular, Wotowiec’s counsel argued that

Officer West coerced Denis into allowing entry into the trailer. The State responded that

Wotowiec lacked standing to challenge the search since he did not live at or own the

trailer. The trial court denied the motion because Denis testified that she permitted

Officer West to enter the trailer after he explained why he was there. Later, during

closing argument, Wotowiec’s counsel reiterated the ground for his motion to suppress

and trial court denied the motion, finding Wotowiec guilty as charged. Specifically, the

trial court stated that:

       the 911 call was made at a person with a handgun, the description matched
       the defendant, the officers had the homeowner’s permission to enter the
       residence. Defendant was found in the bedroom, patted down for officer
       safety since the run was a person with a gun. He found ammunition […]
                                           3
       two inches away from where the defendant’s right hand had been[.] I think
       the officer had uh, given the nature of the call, had the right to search the
       immediate area for the weapon.

(Transcript pp. 36).     The trial court thereafter sentenced Wotowiec to 365 days

incarceration with 361 days suspended to probation.

       Wotowiec now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       We first note that the State did not file an appellate brief. The obligation of

controverting arguments presented by the appellant properly remains with the State.

Matekyo v. State, 901 N.E.2d 554, 557 (Ind. Ct. App. 2009), trans. denied. Where, as

here, the appellee fails to submit a brief, the appellant may prevail by making a prima

facie case of error, i.e., an error at first sight or appearance. Id. Still, we must correctly

apply the law to the facts of the record to determine if reversal is required. Id.

                                       I. Standard of Review

       Wotowiec’s sole argument on appeal is that he was denied the effective assistance

of trial counsel by counsel’s failure to argue suppression of the handgun. Ordinarily, a

post-conviction proceeding is the preferred forum for ineffective assistance of counsel

claims; raising the claim on direct appeal forecloses relitigation of the claim in a petition

for post-conviction relief. Woods v. State, 701 N.E.2d 1208, 1219 (Ind. 1998), cert.

denied, 528 U.S. 861 (1999).




                                              4
      Ineffective assistance of counsel claims are subject to the two-part test established

by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

Our supreme court has summarized the relevant requirements of this two-part test:

      First, a defendant must show that counsel's performance was deficient. This
      requires a showing that counsel's representation fell below an objective
      standard of reasonableness and that counsel made errors so serious that
      counsel was not functioning as counsel guaranteed to the defendant by the
      Sixth Amendment. Second, a defendant must show that the deficient
      performance prejudiced the defense. This requires showing that counsel's
      errors were so serious as to deprive the defendant of a fair trial, meaning a
      trial where the result is reliable. To establish prejudice, a defendant must
      show 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 one that is sufficient to undermine
      confidence in the outcome. Further, counsel's performance is presumed
      effective, and a defendant must offer strong and convincing evidence to
      overcome this presumption.

Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010).

      Wotowiec asserts that his trial counsel’s performance was deficient and prejudicial

because the charges resulted in a conviction. Specifically, Wotowiec contends that he

was subjected to an invalid investigatory stop. Because Officer West lacked reasonable

suspicion to conduct an investigatory stop and the subsequent pat-down search,

Wotowiec argues that Officer West obtained the gun as the result of an illegal search

under the Fourth Amendment to the United States Constitution. Wotowiec claims that a

challenge to the investigatory stop was meritorious, supported by the evidence, and

would have prevailed if raised.

      Apart from the failure to challenge the investigatory stop, however, Wotowiec

asserts no other deficiency in his trial counsel’s performance. Wotowiec makes no
                                           5
argument that the purported deficiency was “so serious as to deprive the defendant of a

fair trial, meaning a trial where the result is reliable.” Id. Thus, Wotowiec’s argument

rests solely upon whether there is “a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.” Id. The

success of Wotowiec’s argument under Strickland ultimately depends upon the success of

his challenge to Officer West’s investigatory stop.

                                      II. Investigatory Stop

       In Terry v. Ohio, 392 U.S. 1, 30 (1968), the United States Supreme Court held

that, consistent with the Fourth Amendment, the police can briefly detain a person for

investigatory purposes if the officer has a reasonable suspicion of criminal activity. Terry

also permits a police officer to conduct a limited pat-down search of a suspect’s outer

clothing to search for a weapon. Wilson v. State, 670 N.E.2d 27, 29 (Ind. Ct. App. 1996).

Reasonable suspicion entails some minimum level of objective justification for making

the stop; something more than an inchoate and unparticularized suspicion or hunch, but

less than the suspicion required for probable cause. Id. We examine the totality of the

circumstances to determine whether the officer had a particularized and objective basis

for suspecting criminal activity. See id.

       Wotowiec contends that Officer West had no reasonable suspicion that he was

involved in criminal activity and thus had no reason to stop him. In light of the radio

dispatch report and Officer West’s testimony, Wotowiec asserts that the stop could only

have been founded upon Officer West’s concerns of personal and public safety, which,

                                             6
standing alone, is an insufficient basis for a Terry stop. See State v. Atkins, 834 N.E.2d

1028, 1033 (Ind. Ct. App. 2005), trans. denied. First, Wotowiec notes that the dispatch

reported only that a person with a gun was at the trailer; it did not contain mention of any

shots fired or any threats made. Next, Wotowiec asserts that the possession of a handgun

is not necessarily a crime, and Officer West testified that he requested entry to the trailer

out of concerns for everyone’s safety. Thus, Wotowiec contends that his detention was

based solely upon Officer West’s concerns for safety, rather than a reasonable suspicion

of criminal activity.

       Wotowiec’s argument ultimately fails because it omits details of Wotowiec’s

behavior upon Officer West’s approach to the trailer. While officer safety, standing

alone, is an insufficient basis to justify an investigatory stop, where otherwise objective

facts trigger reasonable suspicion, the officer’s safety concerns then existing do not

otherwise negate justification for the stop. Instead, “an officer’s subjective motivation

for a search is measured against an objective standard of reasonableness.” State v.

Schlechty, 926 N.E.2d 1, 7 (Ind. 2010), cert. denied, 131 S.Ct. 934, 178 L.Ed.2d 776

(2011).

       Although the report contained no information that a shooting had occurred, the

report specifically communicated that a male, named Josh, was at the trailer wearing a

black shirt and possessing a gun. As Officer West approached in his marked police car,

he saw a male wearing a black shirt run into the trailer. Under certain circumstances,

“[f]light from properly identified law enforcement officers is sufficient to justify an

                                             7
investigatory stop.” Wilson, 670 N.E.2d at 30. Consequently, the radio dispatch and

Wotowiec’s behavior following Officer West’s arrival furnished the specific reasonable

inferences required to conduct the Terry stop and frisk.        The fact that the specific

individual about whom Officer West received a report exhibited evasive behavior upon

Officer West’s arrival was sufficient to cause an ordinarily prudent person to believe that

criminal activity had or was about to occur. See id. Considering the totality of the

circumstances, the facts then known to Officer West were sufficient to create a

reasonable suspicion of criminal activity. Thus, we find Wotowiec’s argument on appeal

insufficient to establish prima facie error insofar as a challenge to the investigatory stop

would not have prevailed even if his trial counsel raised it at trial.        Accordingly,

Wotowiec did not receive ineffective assistance of counsel.

                                     CONCLUSION

       Based upon the foregoing, we conclude that Wotowiec was not denied effective

assistance of counsel.

       Affirmed.

NAJAM, J. and DARDEN, S. J. concur




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