MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Dec 27 2018, 9:18 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana

Jonathan O. Chenoweth                                    Monika Prekopa Talbot
Deputy Public Defender                                   Supervising Deputy Attorney
Indianapolis, Indiana                                    General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Marlan Long,                                             December 27, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-1523
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese M.
Appellee-Respondent                                      Flowers, Judge
                                                         The Honorable James K. Snyder,
                                                         Master Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1512-PC-45593



Altice, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-PC-1523 | December 27, 2018             Page 1 of 11
                                               Case Summary


[1]   Following a jury trial, Marlan Long was convicted of conspiracy to deal in

      cocaine, a Class A felony. He pursued an unsuccessful direct appeal and then

      filed a petition for post-conviction relief, which the post-conviction court

      denied. On appeal, Long argues that the post-conviction court erred in

      determining that trial counsel was not ineffective.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In August 2011, officers from the Metro Drug Task Force of the Indianapolis

      Metropolitan Police Department (IMPD) and the Drug Enforcement Agency

      (DEA) arranged for a confidential informant (C.I.) to purchase a kilogram of

      cocaine from Vernon Woodruff. They had used the C.I. on four prior

      occasions that month to purchase amounts of cocaine from Woodruff in ever-

      increasing quantities. The “kilo buy-bust” was arranged for the purpose of

      identifying and arresting Woodruff’s supplier, as well as Woodruff. Trial

      Transcript at 32.


[4]   On August 23, 2011, a DEA agent installed a video recording device in the

      C.I.’s vehicle. Law enforcement, consisting of approximately fifteen IMPD

      officers and DEA agents, established surveillance around Woodruff’s residence,

      and the C.I. was searched for contraband and money and was fitted with a

      recording device.


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1523 | December 27, 2018   Page 2 of 11
[5]   The C.I. contacted Woodruff to arrange the purchase of a kilogram of cocaine.

      Woodruff then called Bryant Williams, a longtime acquaintance, to see if

      Williams could obtain that much cocaine. Williams told Woodruff that his

      cousin, whom Woodruff had never met, “could get a kilo” for him. Id. at 81.

      Woodruff arranged a meeting between the C.I. and Williams. Woodruff did

      this in hopes of receiving some money and cocaine for his assistance in the

      transaction. Woodruff’s role was to arrange for the buyer to be at the meeting,

      and Williams’s role was to arrange for the seller to be at the meeting.


[6]   The C.I. arrived at Woodruff’s house, parked, and stayed inside his vehicle.

      Woodruff came out and spoke with the C.I. for a few minutes. Woodruff asked

      the C.I. to come inside, but the C.I. declined. At some point, Williams arrived

      in a Camaro being driven by Long. Williams got out of the vehicle and was

      greeted by Woodruff. Williams and Woodruff went inside the residence, and

      Long reparked and then stayed in the Camaro.


[7]   Woodruff and Williams waited inside for the cocaine to be delivered, and the

      C.I. waited in his vehicle. During the period of time the C.I. waited, about an

      hour, Woodruff came in and out of his house to negotiate and talk with the C.I.

      He gave the C.I. a “ballpark figure” of how much the cocaine would cost. Id. at

      119. At one point, Woodruff brought Williams out to the C.I.’s vehicle and the

      three sat in the car talking for a bit. On another occasion, Williams visited

      Long in the Camaro briefly before heading back inside the home.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-1523 | December 27, 2018   Page 3 of 11
[8]    Eventually, two vehicles – a Dodge Durango and a Dodge Magnum – arrived

       together at an adjacent commercial parking lot. A passenger in the Magnum

       got out and went into a liquor store. About the time that the Magnum’s

       passenger returned a few minutes later, Long had exited the Camaro and

       walked that direction and threw a bottle away in a nearby dumpster. Long then

       walked toward the Durango. The driver of the Durango got out and talked

       with Long for about a minute. The passenger of the Durango, Che Brownlow,

       then got out carrying a small black bag that contained a kilogram of cocaine.

       Long and Brownlow walked back toward the Camaro, Brownlow was still

       carrying the bag, and Williams came out and led them into Woodruff’s house.

       Woodruff had never met Long or Brownlow before.


[9]    The events that then transpired inside the home are all according to Woodruff,

       who testified as a State’s witness at trial after entering into a plea agreement.

       Brownlow placed the bag on the kitchen table. Woodruff said that the buyer

       would want to see and sample the cocaine before any money was transferred.

       Long then opened the bag, displaying the kilogram of cocaine wrapped in

       cellophane. Woodruff handed a utility knife to Long, and Long cut the

       wrapper off of the cocaine and then placed the cocaine back in the bag.

       Woodruff, Williams, Long, and Brownlow stood around the kitchen table. A

       discussion regarding the selling price ensued, with Long setting the base price

       and Williams and Woodruff tacking on additional amounts for their fees.


[10]   About ten minutes after the arrival of Long and Brownlow, Williams and

       Woodruff came outside and entered the C.I.’s vehicle. Williams carried the bag

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1523 | December 27, 2018   Page 4 of 11
       of cocaine, opened it, and showed it to the C.I. Long and Brownlow remained

       inside the house during the transaction. After receiving the takedown signal,

       law enforcement officers moved in around the C.I.’s vehicle and entered

       Woodruff’s house. Officers also secured the Durango and Magnum, as well as

       their occupants. Laboratory analysis later confirmed the substance to be a

       kilogram of cocaine.


[11]   On August 26, 2011, the State charged Long with Class A felony conspiracy to

       commit dealing in cocaine (Count I), Class A felony dealing in cocaine (Count

       II), Class C felony possession of cocaine (Count III), and Class D felony

       operating a motor vehicle while suspended as a habitual traffic violator (Count

       IV). Williams, Woodruff, and Brownlow were also charged with Counts I, II,

       and III. Woodruff was charged with four additional counts of Class A felony

       dealing and Class C felony possession for the prior drug transactions between

       him and the C.I.


[12]   On August 14, 2012, Woodruff entered into a plea agreement with the State.

       He pled guilty to Count II in exchange for the dismissal of the ten other counts

       against him. Additionally, his sentence for the Class A felony was set at thirty

       years with ten of those years suspended. Woodruff agreed to truthfully testify

       as to what transpired on August 23, 2011. Thereafter, Williams was convicted

       of Counts I and II and sentenced, on November 26, 2012, to thirty years with

       ten of those years suspended.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1523 | December 27, 2018   Page 5 of 11
[13]   Long and Brownlow’s joint jury trial commenced on January 30, 2013. It

       ended in a mistrial due to a hung jury. Just before the retrial on January 15,

       2014, Brownlow pled guilty as charged. The trial court entered judgments of

       conviction against Brownlow on Counts I and II. That same day, Long’s jury

       trial commenced.


[14]   At trial, Woodruff testified for the State as set forth above. His testimony was

       the only direct evidence linking Long to the cocaine transaction. The defense

       theory was that Woodruff could not be believed and that Long was present,

       having given Williams a ride, but not involved in the drug deal. Rather,

       according to the defense, the evidence established the involvement of

       Woodruff, Williams, and Brownlow, but not that of Long.


[15]   During the trial, the State introduced into evidence Exhibit 25, which was an

       abstract of judgment for Williams’s case, showing the counts of which Williams

       was convicted and the sentence imposed. The State also introduced Exhibit 26,

       which was the CCS from Brownlow’s case, showing that Brownlow had just

       pled guilty and was convicted of conspiracy and dealing. Long’s trial counsel

       did not object to the admission of these exhibits.


[16]   The jury found Long guilty of Count I, the conspiracy charge, but was

       deadlocked as to Counts II and III. The trial court entered judgment as to

       Count I and declared a mistrial as to the remaining counts. Following a

       sentencing hearing, the trial court sentenced Long to thirty years in prison.

       Long’s conviction and sentence were affirmed by this court on direct appeal.


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1523 | December 27, 2018   Page 6 of 11
       Long v. State, No. 49A02-1403-CR-200 (Ind. Ct. App. December 31, 2014),

       trans. denied.


[17]   On December 14, 2015, Long filed a pro-se petition for post-conviction relief,

       which was amended twice by counsel in 2016 and 2017. Ultimately, Long

       alleged that his trial counsel was ineffective for failing to object to Exhibits 25

       and 26. The post-conviction court held an evidentiary hearing on January 5,

       2018, and issued its findings of fact and conclusions on May 31, 2018, denying

       post-conviction relief. Long now appeals. Additional information will be

       provided below as needed.


                                             Standard of Review


[18]   In a post-conviction proceeding, the petitioner bears the burden of establishing

       grounds for relief by a preponderance of the evidence. Bethea v. State, 983

       N.E.2d 1134, 1138 (Ind. 2013). “When appealing the denial of post-conviction

       relief, the petitioner stands in the position of one appealing from a negative

       judgment.” Id. (quoting Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004)). In

       order to prevail, the petitioner must demonstrate that the evidence as a whole

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

       post-conviction court. Id. Although we do not defer to a post-conviction

       court’s legal conclusions, we will reverse its findings and judgment only upon a

       showing of clear error, i.e., “that which leaves us with a definite and firm

       conviction that a mistake has been made.” Id. (quoting Ben-Yisrayl v. State, 729

       N.E.2d 102, 106 (Ind. 2000)).


       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1523 | December 27, 2018   Page 7 of 11
[19]   A petitioner will prevail on a claim of ineffective assistance of counsel upon a

       showing that counsel’s performance fell below an objective standard of

       reasonableness and that the deficient performance prejudiced the petitioner. Id.

       To satisfy the first element, the petitioner must demonstrate deficient

       performance, which is “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.” Id. (quoting McCary v.

       State, 761 N.E.2d 389, 392 (Ind. 2002)). The second element requires a

       showing of prejudice, which is “a reasonable probability that, but for counsel’s

       errors, the result of the proceeding would have been different.” Id. at 1139. “A

       reasonable probability is one that is sufficient to undermine confidence in the

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

       Strickland v. Washington, 466 U.S. 668, 694 (1984)). Because a petitioner must

       prove both deficient performance and prejudice to prevail on a claim of

       ineffective assistance of counsel, the failure to prove either element defeats such

       a claim. See Young v. State, 746 N.E.2d 920, 927 (Ind. 2001).


                                           Discussion & Decision


[20]   Long correctly observes that Exhibits 25 and 26 were objectionable. Our

       Supreme Court has recognized “the long-standing principle that evidence of a

       conviction or guilty plea of others charged with the same offense as the

       defendant is not substantive evidence of the defendant’s guilt or innocence.”

       Borders v. State, 688 N.E.2d 874, 880 (Ind. 1997); see also Kemper v. State, 35

       N.E.3d 306, 311 (Ind. Ct. App. 2015) (“a coconspirator’s plea of guilty is not

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1523 | December 27, 2018   Page 8 of 11
       admissible as substantive evidence of the defendant’s guilt”), trans. denied.

       While such evidence may be admissible for other purposes and not substantive

       evidence, Long’s trial counsel did not seek to have the exhibits so limited and it

       is not even clear for what other purpose Exhibit 26 could have been used.1 See

       Borders, 688 N.E.2d at 880.


[21]   Although trial counsel could have raised a successful objection to the exhibits,

       counsel’s testimony at the post-conviction hearing establishes that he made a

       strategic decision not to object. Counsel believed that the exhibits were

       consistent with the defense theory. That is, Woodruff, Williams, and

       Brownlow were involved in a drug conspiracy but Long just happened to be

       there.2 Counsel explained that, unlike the other three, there was very little

       evidence tying Long to the cocaine deal. The State had to rely on Woodruff’s

       testimony in this regard. Therefore, counsel “thought it was more prudent to

       attack [Woodruff] and his relationship with the other co-defendants.” Post-

       Conviction Transcript at 13.


[22]   Our standard of review requires us to presume that counsel rendered adequate

       assistance and made all significant decisions in the exercise of reasonable




       1
         The State used Exhibit 25 to show that Woodruff and Williams received virtually the same sentence and
       that, therefore, Woodruff did not receive the “sweet deal” for testifying that the defense suggested. Trial
       Transcript at 349. Exhibit 26 (evidence of Brownlow’s guilty plea), on the other hand, was admitted into
       evidence and never discussed by the State.
       2
        Long acknowledges on appeal that the defense theory was “perfectly reasonable” given that “the nature and
       extent of Long’s participation was a weak link in the State’s case.” Appellant’s Brief at 22.

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1523 | December 27, 2018                 Page 9 of 11
       professional judgment. Pennycuff v. State, 745 N.E.2d 804, 811 (Ind. 2001). We

       judge the reasonableness of counsel’s challenged conduct on the facts of the

       particular case, viewed at the time of counsel’s conduct and not through the

       lens of hindsight. Id. at 811-12.


               [We] will not speculate about what may have been the most
               advantageous strategy in particular cases. A deliberate choice made
               by counsel for some tactical or strategic reason does not establish
               ineffective assistance of counsel. Moreover, the decision to forego
               perfunctory objections having little chance of success or no direct
               or substantial relationship to the main thrust of the defense is
               within the realm of reasonable trial strategy. The appellant must
               show that counsel’s alleged failure to act or his choice of strategy
               harmed the cause.


       Id. at 812 (citations omitted) (emphasis supplied). This is not to say that

       strategic decisions are beyond review. Such decisions may be deemed

       ineffective assistance where “egregious” and “so deficient or unreasonable as to

       fall outside the objective standard of reasonableness.” State v. Miller, 771

       N.E.2d 1284, 1288 (Ind. Ct. App. 2002), trans. denied.


[23]   We agree with the post-conviction court that counsel’s decision not to object to

       the exhibits constituted reasonable trial strategy. The exhibits established that

       Williams and Brownlow had been convicted of conspiracy and dealing, and the

       jury already knew that Woodruff had pled guilty to dealing. This evidence was

       in line with the defense theory that these three conspired to deal cocaine to the

       C.I., and their conspiracy was supported by substantial evidence other than

       Woodruff’s own testimony. Contrary to Long’s assertion, the exhibits did not

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1523 | December 27, 2018   Page 10 of 11
       undermine the defense strategy or necessarily establish that Long was also part

       of the conspiracy. Long has failed to establish deficient performance by trial

       counsel in this respect. Accordingly, the post-conviction court properly denied

       relief to Long.


[24]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-1523 | December 27, 2018   Page 11 of 11
